Gordon v. Nieman — 4 N.Y. St. Rep. 844

Majority

p. 844

Mary A. Gordon, Resp’t, v. Herman H. Nieman et al., App’lt.

(Supreme Court, General Term, Second Department,

Filed December 14, 1886.)

Headnote

Contract—Evidence—When oral testimony can be introduced to EXPLAIN WRITTEN CONTRACT.

An agreement constituting an agency was in writing and gave the right of transfer if mutually agreeable, but failed to provide how the agency should be transferred. Oral proof was introduced on the trial showing that this defect was supplied by an oral agreement between the parties at the time the written agreement was signed, and also showing what that agreement was. Held, there was bo error in the admission of the paroi proof.

Appeal from a judgment entered upon a verdict rendered in favor of plaintiff at the Kings county circuit and from an order denying a motion for a new trial made on the judge’s minutes.

' The agreement constituting the agency is in writing. It provides among other things that the agency shall continue ‘1 for the term of one year from the date hereof, or longer, with the right of transfer if mutually agreeable.” It fails to provide how the agency shall be transferred; how and what the outgoing agent shall be paid or reimbursed for the stock of patterns he or she has on hand. This defect was supplied by an oral agreement between the parties at the time the written agreement was signed. Such oral agreement did not change or vary the written contract, but simply covered a matter not embraced or fully expressed therein.

p. 845

Raphael J. Moses, Jr., for app’lt; 8. W. Valentine and William J. Gaynor, for resp’t.

It is the claim of the plaintiff in this action that she purchased of the defendants a stock of patterns, for which she paid them $500, under an agreement that she should become their agent for the sale of patterns, from which she should be relieved on notice from her: She

further claims that the defendants agreed to reheve her from the agency by receiving from her all unsold patterns, and refunding to her all the money paid by her therefor. Then she states further that at the end of one year she notified the defendants of her desire to discontinue the agency, and that they assented to her request, and agreed to receive back the patterns then in her hands unsold and refund to her the fnoney paid to them therefor, and this action was brought for its recovery.

On the trial she testified to these facts substantially, and introduced other testimony in corroboration.

The defendants introduced testimony in positive denial of the plaintiff’s proof, but the j ury gave the plaintiff a verdict.

The defendants have appealed from the judgment, but an appellate court can administer no relief. The questions of fact were sharply controverted, and the jury has certified to the truth of the plaintiff’s statement. That being so, the case is plain, and the verdict and judgment must remain undisturbed.

There was no error in the admission of paroi proof in addition to the written agreement, and as the testimony of the plaintiff fell, her construction of the entire contract received the acquiescence of one of the defendants. She says she called on ffieman and requested him to take back the unsold stock, transfer the agency and refund to her the money she had paid, and he said he was perfectly willing to do so. It is true this was denied by Meman, but the jury may have found it true.

We find no error in the case and the judgment should be affirmed with costs.

Barnard and Pratt, JJ., concur.