Tocci v. Arata

12 N.Y.S. 287, 16 Daly 494, 35 N.Y. St. Rep. 42, 1891 N.Y. Misc. LEXIS 1817

• Court: New York Court of Common Pleas
• Decided: January 5, 1891
• Status: Published

Opinion

Bischoff, J.

Plaintiff being the proprietor and publisher of two newspapers called respectively “Eco d’ltaha” and the “Revista,” and the defendants, as copartners, being about to publish a book called the “Giude,” in the montii of April, 1889, after some preliminary negotiations entered into a contract, whereby the plaintiff agreed to advertise the publication of the Giude in his newspapers, payment for which advertisements was to be made by the defendants by an advertisement of the plaintiff’s business to be inserted in, the Giude, and the gratuitous delivery to the plaintiff of 500 copies of the defendants’ publication. The following writing, purporting to express the plaintiff’s engagement, was signed and delivered by his authorized agent to, the defendants: “April 10. Memorandum.

“Mr. Tocci agrees to insert in the Eco, daily, and in the Revista Italio, Americana, an advertisement, the same to occupy half a column in the first page, to last and continue until publication.of the Giude. In compensation, Mr. Arata will insert a top adv. in the Giude Generale Italiana, and fifteen pages of Tocci advertisements in the same Giude, and give five hundred copies of the same gratis, to be sent by Tocci to his clients in Italy.

[Signed] “Felice Tocci.

“PerM. Crevelli."

Upon the trial, the justice permitted the plaintiff, against the objection of defendants’ counsel, to.introduce paroi evidence of the terms of defendants’ engagement, upon the faith of which the plaintiff agreed as indicated in the writing hereinbefore set forth, and defendants’ exceptions to this ruling upon the trial present the only alleged errors which the record of this case calls upon us to consider. It is apparent from that record that, if this paroi evidence was properly admitted, then the only question to be disposed of in the trial court was whether or not the parties to this action had performed, their respective engagements; the plaintiff insisting that he had furnished the requisite advertisements to entitle him to the delivery of the promised. 500 copies of the Giude, and the defendants, on the other hand, claiming that, the plaintiff had not advertised the Giude as agreed, and that he was not, for that reason, entitled to the delivery of such 500 copies, and thus the question of the defendants’ liability in this action was one purely of fact, which, it was the province of the jury to determine, and' with which an appellate court should not interfere. We do not think the paroi evidence complained of in this appeal was improperly admitted. The writing was signed on behalf of the plaintiff only, and did not undertake to bind the defendants. In such a case, it has been held by the court of appeals that the writing, while-it may be prima facie evidence of .the engagement of the party signing, does not preclude him from showing by paroi what the undertaking of the-party not signing was, and upon the faith of which undertaking the party signing agreed as in the writing indicated. See Routledge v. Worthington Co., 119 N. Y. 592, 23 N. E. Rep. 1111. The same point is also fully considered in Curtis v. Soltau, ante, 285, (just decided by the general term of this, courtj and the opinion in which is about to be announced.) The cases cited determine the question presented on this appeal adversely to the appellants-herein. The judgment should be affirmed, with costs.