Foot v. . Bentley

44 N.Y. 166, 1870 N.Y. LEXIS 141

• Court: New York Court of Appeals
• Decided: December 29, 1870
• Status: Published

Opinions

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] One of the principal grounds relied upon by the appellant's counsel for the reversal of the judgments appealed from, is that the paper of March 21st, 1863, made by the defendant's entry clerk, stating the number of packages of tea bought by the plaintiffs, the total sum to which they amounted, and the plaintiff's subsequent order to forward the tea, being the only written evidence of the bargain, parol evidence of the warranty should have been excluded, or not considered. The answer is, that on the 19th of March, when the bargain was made, it was not known to the plaintiff, or the defendant's agent, how many packages of tea the defendants had of the kind indicated by the sample, all they had was included in the purchases. This paper simply afforded the information necessary to enable the plaintiff to forward his note for the proper amount at four months; beyond that it amounted to nothing more than an admission that a sale had been made; it did not effect one. (Filkins v. Whyland,24 N Y, 338, 341.) In Jeffery v. Walton (1 Stark's Rep., 385), application was made to the plaintiff by the defendant's son, in defendant's behalf, for the loan of a horse, he answered, that he had none except a black horse who shied, that if he took him on hire he must be liable for all accidents; on these terms the bargain was made at the rate of two guineas a week for six weeks; after the bargain a memorandum was made by the plaintiff, and kept by him, in these words: "Six weeks, at two guineas a week;" signed Walton, Jr. The horse shied, and in consequence was injured; in a suit for damages the question was, whether parol evidence of that portion of the agreement, in which the defendant agreed to be liable for all accidents was admissible, and it was held, that inasmuch as the written memorandum regulated only the time of hiring, and the rate of payment, parol evidence was admissible to prove the agreement to be responsible for all accidents. In that case the price and time was known to both parties; in this case the number of packages bought was not. The bill or memorandum referring evidently to what had been bought, simply stated the number, weight, and value at the price previously agreed upon to enable the plaintiff to transmit his note for the true amount. (SeeHuson v. Henderson, 1 Foster, 224; Allen v. Pink, 4 Mees. Wels., 140, and 24 N.Y., 339.)

It was also objected, that, because the plaintiff did not, at the earliest practicable time after the tea was received in store, examine it, and, on account of its being of less value than the sample, offer to return it, he ought not to recover; and in support of that proposition the case of Reed v. Randall (29 N.Y., 358) was cited. The facts in that case did not, as the court decided, constitute a warranty; and it was disposed of upon that ground. In this case the warranty is found as a fact. No obligation, therefore, existed requiring the plaintiff to return, or offer to return, the property warranted. (Muller v. Eno andothers, 14 N.Y., 597.) The remaining question arises upon the exception taken to the admissibility of the letter-press copies of the plaintiff's letters addressed to the defendants. We are of opinion that they were not in any sense original papers, and were, in their character, copies to the same extent that other copies carefully compared would have been, neither of which could be read in evidence without first giving notice to produce the originals; and hence, in our judgment, the exception was well taken, and the judgment must, for that reason, be reversed.