Chase v. Senn — 26 N.Y. St. Rep. 110

Majority

p. 110

Lewis S. Chase, Resp’t, v. Jacques Senn, App’lt.

(City Court of New York, General Term,

Filed October 3, 1889.)

Headnote

Evidence — Admissible to explain ambiguity in wbitten contbact.

In an action on a note, payable in installments, expressed to be for privi lege of advertising one panel in fifteen cars for one year, the defense was. a failure of performance and rescission of contract. Held, that the instrument is ambiguous in respect to the manner in which the privilege is to be enjoyed and who is to determine the form or design of the sign and select, the panel, and that evidence to throw light on the ambiguity was admissible.

The action is on an instrument executed by the defendant, in these words: ■

“New York, September 1, 1885.

“ I promise to pay to the order of L. S. Chase $108, monthly, in the following manner, to wit: Hine dollars twenty days after date and nine dollars on the twentieth day of each succeeding month for twelve months from date, for the privilege of advertising purposes of one panel each, 7x22 inches, in fifteen cars of the Broadway and Seventh Avenue Railroad Company, in the city of New York, for the term of one year from date.”

The defendant, for defense, alleged that on or about the date of said instrument, and prior to the execution and delivery thereof by the defendant to the plaintiff, and as consideration for said instrument, and of the moneys to be paid pursuant to the terms thereof by this defendant to the plaintiff, the plaintiff agreed to furnish, put up and maintain continuously for this defendant, for a period of twelve months from the date of said instrument, one panel each, 7x22 inches, in fifteen cars of the Broadway and Seventh Avenue Railroad Company, in the city of New York, running daily on the surface railroad laid in Broadway in said city of New York, each of said panels to have a written or printed advertisement therein announcing to persons travelling in said cars defendant’s business as a hotel and restaurant keeper at Hos. 9 and 11 YTaverley place, near Broadway, as aforesaid.

That after the execution and delivery of said instrument by the defendant to the plaintiff, as aforesaid, and on or about and from the 20th day of October, 1885, the plaintiff neglected, failed and refused to perform said agreement set forth in the third paragraph of this answer on his part, although the defendant duly demanded

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of the plaintiff that he perforan the same, and that on or about said 20th day of October, 1885, the defendant elected to rescind .said agreement with the plaintiff, and then and there duly notified the plaintiff thereof.

The trial judge directed a verdict in favor of the plaintiff, on the ground that the answer did not set up a legal defense to the action, and from the judgment entered on this verdict the defendant appeals.

E. J. Myers, for app’lt; E. R. Leavitt„ for resp’t.

It is conceded that the instrument sued upon is ■a promissory note. This was so decided by this court and by the court of common pleas, in an action upon a similar instrument. Chase v. Behrman, 1 City Ct. Rep., 352.

The consideration for the instrument was declared upon its face to be “for the privilege of advertising purposes of one panel each, 7x22 inches, in fifteen cars of the Broadway and Seventh Avenue Railroad Company, in the city of Hew York, for the term of one year.” The note implies that the plaintiff, having given the defendant this “privilege,” it, the note, was given in payment for the license. The effective giving of the privilege was not a condition subsequent, but an act concurrent with the giving of the note, for regularly every month thereafter installments were to be paid until the entire obligation was discharged.

But how was the privilege to be enjoyed? Who was to determine the form or design of the sign to be put up, and to select which of the several panels of the car into which it should go ? In this respect the instrument is ambiguous, for it fails to give us any light whatever upon the subject. Evidence furnishing these particulars would not alter or vary the consideration clause of the note, for the instrument contains nothing whatever upon the subject. To this extent, the defendant was entitled to give evidence under the answer to prove a total or partial failure of consideration.

The rule which excludes paroi evidence where contracts are reduced to writing is not quite as broad as the terms in which it is commonly stated would seem to apply. It only excludes any other evidence of the language used bv the parties in making the contract than that which -is furnished by the instrument itself. 1 Greenl. Ev., 316, 321. For illustrations of the rule, see Moore v. Meacham, 10 N. Y., 207 ; Field v. Munson, 47 id., 221 ; Arthur v. Roberts, 60 Barb., 580 ; Hinnemann v. Rosenback, 39 N. Y., 98 ; Walrath v. Thompson, 4 Hill, 200 ; Agawam Bank v. Strever, 18 N. Y., 502 .

The plaintiff was entitled to recover on the mere production of the note, but the defendant had the right to attack the consideration of it, under his special defense, and the onus of proving the defense was upon him. He could not alter, vary or contradict any of the written portions of the contract, but could, to the extent before stated, throw light upon the ambiguous "clause in regard to the consideration for the contract, by proving its meaning. Hpon the former trial of the case, the defendant was not

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limited in Ms proofs to the extent stated, and for this error the. judgment was reversed.

_ The reversal of that judgment for error in admitting evidence did not justify the exclusion upon the second trial of all evidence-on the part of the defendant.

It follows, therefore, that the judgment appealed from must be reversed and a new trial ordered, with costs to the appellant, to abide the event.

McAdam, Ch. J., and McGown, J., concur.