Domestic Sewing Machine Co. v. Barr — 51 N.Y. St. Rep. 219

Majority

p. 219

The Domestic Sewing Machine Co., App’lt, v. Margaret Barr, Resp’t.

(New York Common Pleas, General Term,

Filed February 6, 1893.)

Headnote

Sale — Conditional—Alteration of conract.

Plaintiff leased a machine to defendant on the usual terms, with privilege of purchase on payment of its value; the title to remain in plaintiff until paid for. The machine not being satisfactory, it was exchanged for another, and the number of the latter was inserted in the contract instead of the first one. Held, that the alteration in this respect was not a material one, and that the written contract, notwithstanding the erasure, would control the agreement between the parties.

Appeal from a judgment rendered against plaintiff in the district court of the city of New York for the third judicial district.

H. B. Kinghorn, for appl’t; Anthony J Griffin, for resp’t.

This was an action of claim and delivery to recover the possession of a Domestic sewing machine, Ro. 1,150,-468, which the défendant had rented of the plaintiff, under the usual contract, with privilege of purchase upon paying the agreed value, in this case sixty dollars. The defendant paid five dollars cash and received a credit of ten dollars for an old machine, and thereafter the rent was to be five dollars per month, and the defendant was to be allowed a discount of ten dollars additional if she elected to purchase and pay cash for the machine within sixty days. The contract further provided that the title to the machine should remain with the plaintiff until the money agreed upon had been fully paid. On the trial it appeared that the first machine given to the defendant was not satisfactory, and another was given her, whereupon the number of the new machine was inserted in the contract in lieu of the old, as defendant claims, without her knowledge, and it was upon this ground chiefly that the justice based his judgment in defendant’s favor. While it is quite true that any material alteration of a written contract without the consent of both parties to it will avoid it, yet in this instance we do not think it was in the least material, as it only conformed the agreement to the facts, went but to the identity of the machine, and did not in any way change any of the terms of the contract. The defendant herself distinctly testified that she did not look at the number as anything; and even on the argument of the appeal in this case the respondent admits as much, but claims that it was sufficient in order to enable the defendant to offer proof varying the contract. In this we think the counsel and the court below erred, and that the written contract, notwithstanding the erasure, should control the agreement between the parties. Besides the learned judge who tried the case, who was so uniformly careful in his decisions, evidently erred in regard to the amount tendered and as to the amount which was to be tendered, for his statement of these amounts differs from the testimony given by the defendant herself.

The judgment should, therefore, be reversed, and a new trial in the court below ordered with costs to the appellant to abide the event

Bischoff, J., concurs.