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Elsas v. Gallagher

68 N.Y.S. 839 Court N.Y. App. Term Decision date 1901-02-25 English

Delivered by O’GORMAN, J.

Contents

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p. 839
ELSAS v. GALLAGHER.
(Supreme Court, Appellate Term.
February 25, 1901.)

Headnote

Sales—Action to Recover Pbioe—Pabol Evidence.
Where a contract oí sale is in writing, the buyer cannot resist payment of the agreed price by showing that the seller violated a contemporaneous oral agreement as to the method oí shipment.
Appeal from municipal court, borough of Manhattan, Seventh district.
Action by Herman Elsas against Patrick J. Gallagher. From a judgment in favor of plaintiff, defendant appeals.
Affirmed.
Argued before ANDREWS, P. J., and O’GORMAN and BLANCHARD, JJ.
Moses & Morris (Theo. W. Morris, Jr., of counsel), for appellant.
S. Morrill Banner, for respondent.

The complaint is for goods sold and delivered, and the answer is a general denial. Upon the trial the sale and the delivery of the goods and nonpayment of the balance claimed were substantially conceded. The defendant claimed, however, that his freight charges on the goods in question were $89.47 more than they should be, and that this excess was caused by careless conduct of the plaintiff’s assignor in the method employed in forwarding shipments. This defense was not available under the pleadings, but, waiving that point, it does not seem to be supported by the evidence. The

p. 840
defendant bases his contention upon certain alleged oral promises made by an employé of the plaintiff’s assignor; but the engagements of the parties were in writing, and could not be affected by prior or contemporaneous oral promises or negotiations. The judgment in the court below was proper, and must be affirmed.

Judgment affirmed, with costs. All concur.