Opinion
April 6, 1923.
White Case [ James Adam Murphy of counsel], for the appellant.
Walter F. Welch [ Vincent P. Donihee of counsel], for the respondent.
The action is for damages by the plaintiff as buyer for breach of an alleged contract by refusing to deliver goods alleged to have been sold by the defendant. The defendant denied there was a contract. The plaintiff relied on a writing in the form of a sales slip, received from the defendant's salesman. This was a carbon copy of an original retained by the defendant. The defendant sought to show that on this original had been written the names of certain credit references given by the plaintiff, and that the sale was subject to approval as a condition precedent by the defendant's credit department, and that such approval had not been given. The court held, however, that the writing in the plaintiff's possession was a complete and binding contract and excluded all evidence tending to prove the contrary, upon the ground that the defendant could not vary the written contract.
The defendant, however, did not seek to change the terms of the writing, but to show this condition precedent as agreed upon between the parties with respect to the writing taking effect as a contract; in other words, to show as a condition precedent that terms of credit should be first approved. For this purpose the evidence was admissible, and it was error to exclude it. ( Smith v. Dotterweich, 200 N.Y. 299; Grannis v. Stevens, 216 id. 583, 587; Hechinger v. Ulacia, 194 App. Div. 330.)
There was also error in the admission in evidence over defendant's objection and exception of plaintiff's Exhibit 4. This is a letter written by the plaintiff subsequent to the transactions upon which the suit is based. It is not a part of any correspondence between the parties, but was extremely self-serving in character, and apparently was written when suit was contemplated. The fact that said letter was not replied to by the defendant does not constitute an admission by defendant of the statements therein contained, and its admission to the jury under these circumstances necessarily was prejudicial to the defendant. ( Viele v. McLean, 200 N.Y. 260; Palmer v. Schwarzenbach, 164 App. Div. 614; Droste v. Wabash R.R. Co., 153 id. 160.)
It follows that the judgment and order should be reversed and a new trial ordered, with costs to the appellant to abide the event.
DOWLING, SMITH, PAGE and McAVOY, JJ., concur.
Judgment and order reversed and new trial ordered, with costs to appellant to abide event.