Hughes v. Constantin — 139 N.Y.S. 865

Majority

p. 865

HUGHES v. CONSTANTIN.

(Supreme Court, Appellate Term, First Department.

February 7, 1913.)

Headnote

1. Evidence (§ 441^[1] )—Parol Evidence—Varying Written Orders for Merchandise.

Parol evidence that a buyer, ordering in writing merchandise for delivery about December 30th, told the seller’s salesman that the merchandise was intended for the Christmas trade, was incompetent, as varying the written order.

[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 1719-1845, 2030-2047; Dec. Dig. § 441.*]

2. Sales (§ 81*)—Contracts—Compliance.

A contract calling for the delivery of merchandise about December 20th, and for a shipment f. o. b. Boston, is complied with where the goods are shipped on December 22d.

[Ed. Note.—For other cases, see Sales, Cent. Dig. §§ 217-223; Dec. Dig. § 81.*]

Appeal from Municipal Court, Borough.of Manhattan, First District.

Action by Thomas K. Hughes against George Constantin. From a judgment of the Municipal Court for defendant in an action for work, labor, and services performed, plaintiff appeals.

Reversed, and judgment directed for plaintiff.

Argued January term, 1913, before SEABURY, LEHMAN, and PAGE, JJ.

Wilber, Norman & Kahn, of New York City (Samuel Reid, of Brooklyn, of counsel), for appellant.

Frank E. Loughran, of New York City, for respondent.

The plaintiff seeks to recover for the sale and delivery of certain calendars ordered by the defendant. The order was in writing, upon a printed blank of defendant whi'ch contains the words:

“The said mdse, to be delivered about-190—. We pay no freight or express charges. All goods f. o. b. Boston.”

The defendant claims that the blank for the date contains the words “20 Dec.,” but a careful examination of the order and carbon copy, I think, shows clearly that the date of delivery was “30 Dec.” The goods were shipped from Boston on December 22d and received in New York on December 26th.

^[1] The defendant was permitted to testify that at the time the order was given he told the salesman that the calendars were ,intended for the Christmas trade and must be delivered before December 20th. This evidence was clearly incompetent, and tended to vary the written term that delivery was to be made “about” December 30th.

[2] Even if the date of delivery of the order was “about 20 December,” the contract called for a shipment f. o. b. Boston. The goods were shipped on December 22d, and, unless the word “about” is to be entirely disregarded, this delivery was in time.

p. 866

Judgment should be reversed, with costs, and judgment directed for the plaintiff for the amount demanded in the complaint, with costs.. All concur.