Opinion
December, 1901.
Sanders Feltenstein, for appellant.
Max D. Steuer, for respondents.
In his complaint the plaintiff alleged that he entered into an agreement with the defendants for the purchase and sale, for $1,250, of the entire old materials of every kind and description on certain premises, except boilers and tank. Having introduced upon the trial a paper in the form of a bill for "all the old iron" upon the premises, "excepting boilers and tank as agreed," the court ruled out a question, calling for a conversation with one of the defendants in regard to the purchase of the secondhand materials on the premises, on the ground that it was a written contract and could not be varied; to which the plaintiff duly excepted. This ruling was made more distinct, upon inquiry, so as to hold that the plaintiff might not show that he had agreed in the conversation to buy more than was contained in the paper. This was error. The coincidences, especially of dates and amounts, together with the words "as agreed" at the end of the paper taken by the plaintiff, strongly tended to prove that, as was assumed by the learned justice, the paper covered the whole transaction between the parties. Nevertheless, the plaintiff was entitled to show, if he could, under the pleadings, that the real agreement was wider or other than appeared from the exhibit. The judgment should be reversed.
McADAM, P.J., and SCOTT, J., concur.
Judgment reversed, and new trial ordered, with costs to appellant, to abide event.