Stonehill Wine Co. v. Lupo

110 N.Y.S. 408

• Court: Appellate Terms of the Supreme Court of New York
• Decided: May 15, 1908
• Status: Published

Opinions

GREENBAUM, J.

The written order called for “Tipso Castelvetrano (light in color laich Dry Catawba) see first shipment Manzella.” The character and quality were thus embodied in writing. The testimony of the defendant upon plaintiff’s objection only showed that the wine delivered was not like the sample shown by the salesman and as guaranteed by him. I think the evidence as to sample and guaranty was clearly incompetent, as it tended to vary the terms of the written contract.

The°order described the kind of wine, its color, and expressly referred to a previous shipment to “Manzella.” The effect of admitting testimony as to a sample was to eliminate the force of all that is contained in the written order, and to substitute in its place a sale by sample like that claimed to have been shown by the salesman. If the order is to stand as the contract between the parties, there was not a sale under a warranty by sample, and if the goods shipped did not comply with the description in the order, the contract being executory and the defects claimed being patent upon examination, the remedy of the purchaser was to refuse to accept.

It was also error to admit the conversations of the defendant with the plaintiff’s salesman as to the complaints about the wine, in absence of authority shown in the salesman to receive complaints. It was also ■error to have permitted defendant to testify as to the contents of a letter claimed by him to have been written plaintiffs, without proof of mailing.

Judgment reversed, and new trial ordered, with costs to appellant' to abide the event.

GILDERSLEEVE, P. J., concurs.