Newhall v. Appleton — 1 N.Y. St. Rep. 174

Majority

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Newhall v. Appleton and others.^[1]

(Court of Appeals,

Filed April 13, 1886.)

Headnote

Evidence—When entbies in employee’s books not admissible to

EXPLAIN CONTRACT OE HIRING.

Where defendant agreed orally to give plaintiff “ four dollars an order” for subscriptions, and in an action on this contract was allowed to show by his books that the understanding with canvassers generally was that “ proved” subscriptions only were to be paid for, and that their accounts were divided into “ proved ” and “ unproved,” and credits only made for the former. Held error ; that the transactions were res inter alios aeta, and that, as plaintiff was not cognizant of the entries, they were the mere declarations of defendant in his own favor and inadmissible.

Appeal from general term superior court of the city of New York, affirming judgment for defendant entered upon opinion of referee.

A. B. Byett, for appellant.

E. W. Paige, for respondents.

By the terms of the oral contract, as testified to by the plaintiff, and as found by the referee, the plaintiff was to be paid four dollars an order for subscriptions obtained by him for the serials, Picturesque Europe and Turner’s Gallery, published by the defendants. The plaintiff claimed that, by the true interpretation of the contract, he was entitled to four dollars for every bona fide subscription obtained. It was insisted on the other hand by the defendants that the contract meant that the plaintiff was to receive four dollars for every good or proved subscription, meaning thereby a subscription upon which at least ten numbers of the serial subscribed for should be delivered and accepted.

This question was regarded by the referee as the vital question in the case. The defendants sought to establish their interpretation of the contract by two lines of evidence:

First. By showing that in the trade the words “four dollars an order ” meant four dollars for a proved order; and,

Second, That their contracts with their canvassers generally were made with this understanding of the meaning of the phrase, and particularly that this was the understanding between them and the plaintiff. The defendants, in support of their case, were permitted to give in evidence, under objection, their books containing accounts with a

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number of persons who had been employed as canvassers, in which the subscriptions obtained were separated into two classes, proved and unproved, or good and bad, and a credit given for good subscriptions only.

This evidence was, we think, incompetent. The transactions of the defendants with other agents were res inter alios acta. The only apparent object of the evidence was to show, by inference, what the contract with the plaintiff was, or the practice of the defendants in their business in respect to compensation. On neither ground can its admission be justified. It did not appear that the plaintiff was cognizant of the transactions indicated, and as to him the entries were the mere declarations of the defendants in their own favor. If the admission of the account of Taylor could be justified on the ground that it tended to impeach the plaintiff’s witness Hall, this would not cure the error in admitting the other accounts, which were received as general evidence in the cause. For this error, and without considering the other questions argued, the judgment should be reversed, and a new trial ordered.

All concur, except Rapallo, J., absent.