Tocci v. Arata — 35 N.Y. St. Rep. 42

Majority

p. 42

Felice Tocci, Resp’t, v. Pietro Arata et al., App’lts.

(New York, Common Pleas, General Term,

Filed January 5, 1891.)

Headnote

EvZDEMCB—CONTKACT.

In pursuance of an agreement between the parties the plaintiff signed a ■writing stating that he agreed to advertise in his newspaper a book defendant was preparing,'in compensation for which defendant was to insert in such book advertisements for plaintiff and deliver him certain copies. This was not signed by defendant. Held, that parol evidence of defendant’s agreement, on the faith of which plaintiff agreed as in the writing indicated, was admissible.

Appeal from a judgment in favor of plaintiff entered on the verdict of a jury rendered on a trial in the second judicial district court in an action for damages for breach of contract.

George Zabriskie, for app’lts; Mr. Lord, for resp’t.

Plaintiff being the proprietor and publisher of two newspapers called respectively “ Eco DTtalia ” and the “ Re-vista,” and the defendants as copartners being about to publish a book called the “ Giude,” in the month of April, 1889, after some preliminary negotiations, entered into a contract whereby the plaintiff agreed to advertise the publication of the “ Giude ” in his newspapers, payment for which advertisements w.as to be made by the defendants by an advertisement of the plaintiff’s business to be inserted in the “ Giude ” and the gratuitious delivery to the plaintiff of 500 copies of defendant’s publication. ■

The following writing, purporting to express the plaintiff’s engagement, was signed and delivered by his authorized agent to the defendants:

“April 10—Memorandum.

“Mr. Tocci agrees to insert in the “ Aco,” daily, and in the Revista Italio Americana, an advertisement reclame to occupy half a column in the first page, to last and con

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tinue until publication of the “ Giude." In compensation, Mr. Arata will insert a top adv. in the Qiude Generate Italiana and fifteen pages of Tocci advertisements in the same Giude, and give five hundred copies of the same gratis, to be sent by Tocci to his clients in Italy.

' “(Signed.) Felice Tocci.

“Per M. Crevelli.”

Upon the trial the justicep ermitted the plaintiff, against the objection of defendants’ counsel, to introduce parol evidence of the terms of defendants’ engagement, upon the faith of which the plaintiff agreed as indicated in the writing hereinbefore set forth, and defendants’ exceptions to this ruling upon the trial present the only alleged errors which the record of this case calls upon us to consider. It is apparent from that record that if this parol evidence was properly admitted then the only question to be disposed of in the trial court was whether or not the parties to this action had performed their respective engagements, the plaintiff insisting that he had' furnished the requisite advertisements to entitle him to the delivery of the promised five hundred copies of the Giude, and the defendants, on the other hand, claiming that the plaintiff had not advertised the Giude as agreed and that he was not, for that reason, entitled to the delivery of such five hundred copies, and thus the question of the defendants’ liability in this action was one purely of fact, which it was the province of the jury to determine, and with which an appellate court should not interfere.

We do not think the parol evidence complained of in this appeal was improperly admitted. The writing was signed on behalf of the plaintiff only and did not undertake to bind the defendants. In such a case, it has been held by the court of appeals that the writing, while it may be prima facie evidence of the engagement of the party signing, does not preclude him from showing by parol what the undertaking of the party not signing was, and upon the faith of which undertaking the party signing agreed as in the writing indicated. See Routledge et al. v. Worthington Co., 119 N. Y., 592 ; 30 N. Y. State Rep., 195.

The same point is also fully considered in Curtis v. Soltau, just decided by the general term of this court, and the opinion in which is about to be announced. 34 U. Y. State Rep., 767. The cases cited determine the question presented on this appeal adversely to the appellants herein.

The judgment should be affirmed, with costs.

Bookstaver, J., concurs.