Hyperlawhypertext legal database Van Mater v. Burns 59 N.Y. St. Rep. 610

← Cases

Van Mater v. Burns

59 N.Y. St. Rep. 610 Court N.Y. Gen. Term Decision date 1894-02-12 English

Delivered by Pratt, J.

Contents

Majority

p. 610
Holmes Van Mater, Resp’t, v. Jabez Burns, Jr., et al., App’lts.
(Supreme Court, General Term, Second Department,
Filed February 12, 1894.)

Headnote

1. Witness—Credibility.
The interest of a party in the result makes the credibility of his uncontradicted testimony a question for the jury.
2. Evidence—Parol.
A complete written contract cannot be contradicted by parol testimony.
3. Verdict—Vacation.
A verdict will not be set aside in aid of a defense not pleaded.
Appeal from a judgment entered in favor of plaintiff and from an order denying a motion for a new trial.
Ayres & Walker,'(Charles J. Patterson, of counsel,) for app’lts; W. K. Van Metier, for resp’t.

The appellants do not claim that any error of law was committed by the court below, but ask that the verdict be set aside upon the sole ground that it is contrary to the weight of evidence. One answer to the application is that it is based entirely upon the testimony of one of the defendants, and it is well settled that, even where the testimony of a party is uncontradicted, his interest in the result makes its credibility a question for

p. 611
the jury. Goldsmith v. Coverly, reported in 27 N. Y. Supp. 116 ; 56 St. Rep. 857 , lays down that rule, citing Honegger v. Wettslein, 94 N. Y 261 ; Wohlfahrt v. Beckert, 92 N. Y. 494 ; Kavanagh v. Wilson, 70 N. Y. 177 ; Elwood v. W. U. Tel. Co., 45 N. Y. 549 ; and other cases. But in the present case it cannot be said that the testimony of the party is uncontradicted. By the contemporaneous written agreement the right of the publishers to be paid in goods for the advertisement was absolute if the goods were demanded in three years. By the testimony of defendant the goods were not to be delivered except on board ship destined to a foreign port. The bill of sale executed by defendant in August, 1887, six weeks after the advertising was finished, being without condition, was also contradictory of defendant’s testimony. The verdict was warranted by the evidence, if not absolutely required by it.

The point made by respondent, that the contract, being in writing, could not be contradicted by parol testimony, is also well taken. This is not a case where, upon inspection, a contract is seen to be incomplete, which allows that part of the contract not reduced to writing to be proved by parol. Even in such a case the written part of the contract cannot be contradicted, as is here sought to be done. Thomas v. Scutt, 127 N. Y. 133 ; 38 St. Rep. 692 .

Another answer to the motion of appellant is that the defense interposed at the trial was not pleaded, and therefore not admissible if objected to. It is not allowable to set .aside a verdict in aid of a defense not pleaded. The only defenses set up in the answer were a denial of the assignment of the claim to the plaintiff of the publication of the advertisement, and of the demand of the goods and refusal to deliver. These were all proved upon the trial, and were not then controverted. That entitled plaintiff to his verdict.

Judgment and order denying new trial affirmed, with costs.

All concur.

Cases cited