Grand Rapids Veneer Works v. Forsythe

This is an appeal from a judgment for tbe defendants entered upon tbe verdict of a jury and an order denying plaintiff’s motion for a new trial. The action is to recover tbe price of squares of veneer shipped to defendants under an executory, contract of sale. Tbe defendants refused to accept tbe goods on tbe ground that they did not comply with tbe contract, and counterclaimed for an amount of freight paid by them.

We are strenuously urged to set aside tbe verdict on the ground that it is against tbe weight of evidence. Our examination of the' evidence leads us to no such conclusion. There was a fair question of fact whether the goods complied with tbe order or not, and tbe question was fairly submitted to tbe jury under a charge to which no exception was taken. The verdict must, therefore, stand unless there was legal error in tbe conduct of the trial. In this respect there is but one question that needs discussion.

Tbe contract between tbe parties, so far as it was in writing, consisted of an order given by defendants to the plaintiff’s agent Tbeis and a series of letters and' telegrams following. Tbe defendants in their answer alleged that tbe sale was made by samples on tbe representation of tlie agent that tbe goods were of a superior quality

“ Brooklyn, N. Y., June ‘¡¡Qth, 1891.

“ Grand Rapids Veneer Works, Grand Rapids, Mich.:

“ Order Book No. 1437.

“ Dear Sirs. — Please ship us at once 1 carload Birch Squares, composed of 1300 squares 16x16 and balance of equal parts of 14x14 & 15x15. To be dry, flat and cut smooth without fractures, and at least d. white faces. Price, $2.75 M. 4 mos. note.

“ Yours truly,

“FORSYTHE & 00.

“We pay freight. F. & Co.

“You may send samples of your ^ Birch sheets, say 36" grain, & also of Shaved Quar. Oak,

The subsequent correspondence is not material on the question now presented. On the trial the defendants were permitted to prove against plaintiff’s objection and exception the conversation and transaction between Theis and defendants at the time of giving the order. The appellants claim that this ruling was erroneous.

The question of how far parol evidence is admissible to vary a written contract is often very difficult to determine. It may be laid down as a rule that it is^ not admissible to contradict the written contract nor where the writing appears to be a complete and perfect agreement. (Eighmie v. Taylor, 98 N. Y. 288 .)

But the rule does not apply where the original contract is verbal and entire and a part only reduced to writing nor to collateral undertakings. (Ch apin v. Dobson, 78 N. Y. 75 .)

We think that this case falls within the exception to the rule first named. The negotiation was had orally and by the presentation of the sample. In pursuance of it a written order was given. This order was not in form, an agreement. .It contained no covenants on the part of the vendor and was not executed by Theis, and, therefore, could not constitute a contract except on acceptance by the plaintiff. The contract of sale was executory; .the vendee had no knowledge of the character of the goods save by the sample. We think that in such a case under the authorities cited it was permissible to show that the order and contract. were based on samples shown and that the sale was a sale by sample.

Dykman, J., concurred; Brown, P. J., not sitting.

Judgment and order affirmed, with costs.