Hand v. Shaw

16 Misc. 498, 38 N.Y.S. 965, 74 N.Y. St. Rep. 556

• Court: City of New York Municipal Court
• Decided: April 15, 1896
• Status: Published

Opinion

Van Wyck, Ch. J.

The plaintiff sues for $235, which defendants agreed to pay in trade for their advertisement in a book issued by plaintiff. ' This contract is in writing, signed-by defendants, -and contains this clause: “ This amount ($235 in trade) to be-deducted from merchandise to be sold for a proposed new hotel other .than has been estimated or contracted for at.this time, and is not transferable to any account without' our consent.” The appellants contend that it was error for the court to admit parol evidence to ascertain the intent- and meaning of the parties by this clause, and in leaving it to the jury-to ascertain from this conflicting evidence what was the. agreement in reference thereto. However, it was the ■defendants who first gave parol evidence in explanation of this clause, and this against-plaintiff’s objection. The defendants’ version of the conversation with, plaintiff, which induced them to put this clause-in the contract, is that plaintiff “ said there was a large’ hotel that would be opened soon and he could influence the placing of that order with us; that the order would amount to as much as the one we had received for the outfit for the Hotel Iroquois, which was over $3,000, and he wanted us to agree to pay $235 in trade after we had got this order.”- . This was contradicted by plaintiff and he testified that at the time he'was negotiating for the .purchase of a property in Connecticut, which he intended, improving with a hotel, and that he said- to. defendants’,. after some further consideration of, it, that if his object was realized in,-regard to the purchase of this property, he intended to erect a small house, and might have use for this trade. The proof is that plaintiff went to defendants’ store and selected a lot of china, crockery and glassware (the articles dealt in by defendants) and received an invoice thereof from them for the same at a fixed price of $241.15, and that he tendered them $6.15 in cash and demanded delivery of same under his contract for $235 in trade. All of this conflicting testimony was properly submitted to the jury in a well-considered charge. • The appellant, by his counsel’s brief, contends that it was error to decline to charge his second request: “ That unless' plaintiff has proved that there was such a new hotel at the time he made his demand, the defendants are entitled to a verdict.” But if the jury believed the plaintiff’s evidence, it would not be necessary for him to have fully completed a hotel before he had a right to demand payment in trade for the defendants’ advertisement. Appellant complains of the charge of plaintiff’s request, at folio 161, as error, “ as there is no testimony in the case that at the time the contract was made the parties had in contemplation the proposed hotel, at Southport, Conn.” But such testimony is in the case,' for plaintiff so testifies at folio' 140. These are the only two criticisms made in appellants’ brief in regard to the charge. The judgment and order are affirmed, with, costs.

McCarthy, J., concurs.

Judgment and order affirmed, with costs.