Gordon v. Niemann — 28 N.Y. St. Rep. 616

Majority

p. 616

Mary A. Gordon, Resp’t, v. Herman H. Niemann et al., App’lts.^[1]

(Court of Appeals, Second Division,

Filed January 14, 1890.)

Headnote

1. Evidence—Written contract not to be varied by paroi agreement.

Defendants under a written contract sold plaintiff a stock of patterns for $500, and by it agreed to sell her patterns ordered during the year at a certain price, and to exchange new patt erns for undesirable ones, the contract to continue one year, with the right of transfer if agreeable. At the end of the year, defendants refusing plaintiff’s request to take back all unsold patterns, and refund their price, she brought an action for their price, and, upon the trial, was permitted to show that at the time of the execution of the contract defendants agreed orally that she could have the

p. 617

agency for one year or longer, and that, at the time she wished to end the agency, they would transfer it, take back the stock, and refund the money, etc. Held, error; that it was an attempt to nullify a written by an oral contract, and that the right of transfer meant merely a privilege to plaintiff to transfer to some other person her rights under the contract.

2. Same—Statute of frauds.

That the oral agreement was void under the statute of frauds, as it was not to be performed within one year.

Appeal from judgment of, the general term of the second department, affirming a judgment entered on a verdict at the Kings county circuit.

Raphael J. Moses, Jr., for app’lts; S. B. Valentine, for resp’t.

— In 1881 and 1882 the defendants were partners under the name of the Universal Fashion Company, and engaged in manufacturing and selling paper patterns. June 21, 1881, the parties to this action entered into a written contract by which the defendants sold to the plaintiff a stock of patterns for $500, three-fifths of which were then delivered and the remainder were to be delivered in time for the fall trade of that year. The plaintiff paid seventy-five dollars down and agreed to pay the remainder of the price at certain specified dates within the ensuing year. By the contract the defendants were bound to sell during the ensuing year, to the plaintiff, such patterns as she should order, for one-half of the retail price, and she was bound to keep on hand a Ml assortment of all patterns made by the defendants. It was provided by the contract that during its continuance the defendants should take back from the plaintiff the old and undesirable patterns left out of their catalogues for the succeeding seasons, and give in exchange such other patterns as were ordered when the old ones were returned. The written contract provided that it was to continue for the term of one year from the date hereof, or longer, with the right of transfer, if mutually agreeable.

It is agreed that for one year each party fully performed this contract. At the end of the year the plaintiff desired to discontinue the business, and asked the defendants to take back all unsold patterns and refund the price which she had paid, which they refused to do. In April, 1885, she brought this action, alleging that she had purchased patterns for which she had paid $504.50, and that she had on hand patterns unsold for which she had paid $488.75, which sum, with interest from the dates of payment, she sought to recover.

As a ground for this action, she alleged that, cotemporaneously with the written agreement, an oral agreement was made by which it was “ agreed that if at the end of one year, or at any other time, plaintiff should be dissatisfied with said fashion or pattern business, and should wish to discontinue the said agency, that they, said defendants, would, upon such notice from said plaintiff, relieve said plaintiff of said agency by taking from her all patterns* of the said Universal Fashion Company remaining in her hands, and refunding to her all moneys paid by her for the same.”

p. 618

On the trial the plaintiff testified: “Mr. Williams, at the time this written agreement was made, said that I should have the agency for one year, or longer, if I preferred, and that at the time that I wished to end this agency, that they would transfer the agency, take back the stock on hand and refund the money I had paid for it. I continued the agency for a year. After a year had expired I had a conversation as to the transferring it with Mr. Niemann at his office, Fourteenth street, New York city. * * * It was understood that I was to keep it for one year; for one year, or longer, if I preferred, without making the transfer.”

Lizzie Burkett, one of the plaintiff’s employees, testified that she was present when the written contract was made, and that “ Mr. Williams told Miss Gordon that she was to take the agency for one year, or longer, and at the end of that time, if she did not wish to keep it, to get it transferred, the stock taken, and the money refunded.” Annie F. Nolan, another of plaintiff’s employees, testified that she was present when the written contract was made, and that “ Mr. Williams told Miss Gordon at the end of the year that if she wished to discontinue the agency that they would transfer the agency, take up the stock, and refund the money that she had paid for it."

This testimony was objected to upon the ground that it tended to contradict the written contract, and at the end of the plaintiff’s case the defendants moved that the complaint be dismissed, on the ground that the oral agreement testified to was by its terms not to be performed in one year from the making thereof, and also that it was for the .sale of goods for the price of fifty ■dollars or more, and was void by the statute of frauds. The motion was denied. The defendants and their witnesses denied "the making of the oral contract. The court instructed the jury that there were two issues for them to pass upon: (1) Was the oral agreement made as the plaintiff testified? (2) Did Mr. Neimann agree that he would transfer the agency, take back the .stock and refund the money ? The jury was further instructed that if they, found both issues in favor of the plaintiff, she was entitled to a verdict for $484 with interest for two years, but if they found either issue in favor of the defendants, they were ■entitled to a verdict. The jury rendered a verdict for $542, on which a judgment was entered, which was affirmed at general term..

The court erred in permitting the plaintiff to establish a cotemporaneous oral contract which nullified the provision of the written contract that the patterns were sold, and only unsalable ones were to be returned. This evidence was riot admissible upon the theory that it was explanatory of the expression: “ With the right of transfer if mutually agreeable.” The right of transfer evidently means that the plaintiff might transfer to some other person her rights under the contract, if that person was satisfactory to the defendants. Again, the oral contract testified to was, by its terms, not to be performed within one year from the making thereof, and for that reason it was void by the statute of frauds.

p. 619

The judgment should be reversed, and a new trial granted, with ■costs to abide the event.

All concur, except Bradley and Haig-ht, JJ., not voting, and Brown, J., not sitting.