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and 118 New York State Reporter ed claim, or one not disputed in good faith, which cannot be paid at less than its_face without a new consideration. People ex rel. McDonough v. Board of Managers, etc., and Nassoiy v. Tomlinson, supra. Moreover, it has been held in a very late case in the First Department that the rule that an entire indebtedness cannot be discharged by a partial payment, even when so accepted, is not looked upon with favor, and is confined strictly to cases falling within it. Jackson v. Volkening, 81 App. Div. 36, 80 N. Y. Supp. 1102. Nor could the plaintiffs avoid the effect of the acceptance of the checks by the assertion that they did not notice the condition attached to the statements that such checks were remitted in full. In Whitaker v. Eilenberg, supra, there was no specific statement that the checks were remitted in full, but it was held sufficient that the creditor fully understood that they were so intended. The plaintiffs knew that the checks represented the full amount which the defendant regarded itself as obligated to pay. Whether they read the statements or not, it is undisputed that they knew that the checks were in fact tendered in full, and that they were sent to be received, if accepted, in full discharge of the indebtedness; and their acceptance, under all the authorities, operated as an acceptance of the condition, and as a payment and satisfaction.
There is nothing in the cases of Eames Vacuum Brake Co. v. Prosser, 157 N. Y. 289, 51 N. E. 986, and Komp v. Raymond, 175 N. Y. 102, 67 N. E. 113, in conflict with the line of authorities hereinbefore cited, and both are distinguishable therefrom in fact and principle. The judgment and order should be affirmed.
Judgment and order affirmed, with costs. All concur.
THOMAS V. INTERNATIONAL SILVER CO.
(Supreme Court, Appellate Term. November 6, 1903.) 1. APPEAL-TAXATION OF Costs_OBJECTION.
On appeal from an order denying a motion for retaxation of costs, the record must show what items were objected to, and the grounds of objection. Appeal from City Court of New York, Special Term.
Action by Clarence E. Thomas against the International Silver Company. From an order taxing costs, defendant appeals. Affirmed.
Argued before FREEDMAN, P. J., and BISCHOFF and BLANCHARD, JJ.
I. B. Stewart, for appellant.
BLANCHARD, J. There is nothing in the record on this appeal to show what particular items of the bill of costs the defendant objected to when the bill was before the clerk of the court for taxation. The affidavit of the defendant's attorney, made after the bill was taxed, indicates only that a general objection to the taxation of any
costs was interposed. There is no statement of the grounds of objection. The record should show what items in the bill were objected to, and the grounds thereof, in respect to each item objected to. Lotti v. Krakaner, i Civ. Proc. R. 312; Comly v. Mayor, i Civ. Proc. R. 306, 317; Matthews v. Matthews (Sup.) 1 N. Y. Supp. 222.
The order denying defendant's motion for retaxation of costs is affirmed, with costs and disbursements. All concur.
GRAY V. MEYER et al. (Supreme Court, Appellate Division, Fourth Department. November 17, 1903.) 1. WRITTEN CONTRACT-PAROL EVIDENCE.
A written agreement to purchase a person's tobacco crop for a certain year, providing that the tobacco should be free from “hail, frost, pole burn, stem rot, fats, wet buts, wet tobacco and free from trashy stuff,” and should "be delivered free from any damage,” was a complete contract, and could not be varied by parol evidence to the effect that damaged tobacco, denominated “grasshopper eaten tobacco," was to be taken with
the rest. Appeal from Trial Term, Steuben County.
Action by Douglas W. Gray against Isaac Meyer and another. From a judgment for plaintiff, and from an order denying a new trial, defendants appeal. Reversed.
Argued before McLENNAN, P. J., and SPRING, WILLIAMS, HISCOCK, and STOVER, JJ.
Warren J. Cheney, for appellants.
SPRING, I. The plaintiff has sued for damages arising from alleged breach of a written contract entered into with the defendants. The plaintiff is a farmer and tobacco raiser, and the defendants are dealers in tobacco. In the fall of 1901 they purchased of the plaintiff his crop of tobacco, evidenced by the following agreement:
“Corning, N. Y., Sept. 2nd, 1901. "This is to certify that we have bought of D. W. Gray his 1901 crop of tobacco in bundle, said tobacco to be free from hail, frost, pole burn, stem rot, fats, wet buts, wet tobacco and free from trashy stuff and to be delivered free from any damage at Corning, on or about January. Acres 18. Price per lb. 11c. Paid on contract $50.00.
H. M. Billington, Agt.
"I. Meyer & Co." The agreement was executed in duplicate, and the one signed by the plaintiff was delivered to the defendants. When the plaintiff wrapped his tobacco in bundles for the defendants, he included a considerable quantity of tobacco which had been eaten by grasshoppers. An inspection of it early in January by the defendants disclosed its condition, and they insisted upon its being rehandled, and the grasshopper eaten tobacco removed, which the plaintiff declined to do, and refused to deliver the tobacco unless the grasshopper eaten tobacco was taken with the rest. Upon the trial the plaintiff was permitted to show that it was the understanding of the parties that tobac
and 118 New York State Reporter co denominated “grasshopper eaten" was not to be excluded from the sale. This evidence was objected to by the defendants on the ground that it tended to vary or contradict the written agreement. The evidence showed that tobacco so eaten was damaged, and the court so stated to the jury, but permitted them to pass upon the question whether tobacco damaged in that way was to be included within the terms of the contract.
The contract was complete. It provided that the tobacco was to be free from certain defects, and then contained the general clause that it was "to be delivered free from any damage.” The proof is clear, and it must be self-evident, that the tobacco leaves which had been mulled over and eaten through by grasshoppers were not "free from damage.” While, within well-defined rules, parol evidence is competent to explain the equivocal terms of a written agreement, or fill out an incomplete one, it is never admissible to vary or contradict a clear, unambiguous agreement-a contract which plainly was designed to express the entire understanding of the parties. Mead v. Dunlevie, 174 N. Y. 108, 66 N. E. 658. Jamestown Business Association, Limited, v. Allen, 172 N. Y. 291, 64 N. E. 952, 92 Am. St. Rep. 740.
In permitting proof of previous parol negotiations between the parties to be given, and allowing the jury to determine, as a question of fact, whether “grasshopper eaten tobacco should be excluded” from the sale, we think the learned trial judge committed error prejudicial to the defendants, requiring a reversal of the judgment. The judgment and order should be reversed, and a new trial ordered, with costs to the appellants to abide the event.
Judgment and order reversed, and new trial ordered, with costs to the appellants to abide the event. All concur.
RUSSELL & CO. y. McSWEGAN et al.
(Supreme Court, Appellate Term. November 6, 1903.) 1. CONTRACTS-CONSTRUCTION-QUESTION FOR COURT.
Where a contract for the payment of commissions on sale of engines was free from ambiguity and clearly expressed the intention of the parties, it was improper to submit to the jury the nature of the contract
made by the parties. 2. SAME-CONSTRUCTION.
Where plaintiffs wrote defendants that they would furnish engines on defendants' orders at the following discounts and terms for one year from August 1, 1891, to wit, 25 per cent. discount on single-valve engines from attached list, and agreed to refer to defendants all inquiries for engines from certain states, such document did not constitute defendants plaintiff's' sales agents, but merely gave them the right to purchase at such discount within the specified localities. Appeal from City Court of New York, Trial Term.
Action by Russell & Co. against Frank McSwegan and another. From a judgment in favor of defendants, and from an order denying plaintiffs' motion for a new trial, they appeal. Reversed.
See 79 N. Y. Supp. 440.
11. See Contracts, vol. 11, Cent. Dig. $ 767,
Argued before FREEDMAN, P. J., and BISCHOFF and BLANCHARD, JJ.
W. A. Ulman, for appellants.
BLANCHARD, J. The plaintiffs' clainı is admitted. The defendants' counterclaim is to the effect that:
"Heretofore, and on or about the 1st day of August, 1891, it was agreed by and between the plaintiffs and defendants that the defendants should undertake the agency for the sale of the engines of the plaintiffs, and upon such should be allowed a discount of 25 % from the list price on single-valve engines, and 20% discount from the list price on 4-valve engines; and it was further agreed that such discount should be allowed to these defendants upon all sales of plaintiffs' engines made upon demand from New Jersey, the eastern half of New York, Connecticut, Rhode Island, Vermont, New Hampshire, and Philadelphia; that thereupon, in pursuance of said agreement, these defendants entered upon the sale and promotion and advertisement of the engines of the plaintiffs, and created in the territory above set forth a large demand for the same; that since the 1st day of August, 1891, said plaintiffs have sold, upon demand and inquiry from the territory aforesaid, a large number of said engines, upon which, by reason of the agreement hereinbefore set forth, the plaintiffs became and were indebted to the defendants for the discount of 30 % from the list prices of the engines so sold, to the amount of $13,127, no part of which has been paid, and all of which is now due and owing from the plaintiffs to the defendants."
Defendants introduced in evidence to support their claim of agency a document, the terms of which are as follows:
"Masillon, Ohio, August 1, 1891. "To F. McSwegan & Son, 98 Liberty St., New York City-Gentlemen: We propose to furnish you automatic engines upon your order at the following discount and terms, same to continue in effect one year from August 1, 1891: Discount on single valve auto. engines, 25 % from attached list. All engines f. o. b. New York. Terms not longer than ninety days from date of shipment. We will refer to you all inquiries for engines from N. J., eastern half of New York, Connecticut, Rhode Island, Massachusetts, Vermont, New Hampshire and Philadelphia. “[Signed]
Russell & Co. Gates." This document is free from ambiguity, and clearly expresses the intention of the parties. It is therefore difficult to conceive why the court at the trial deemed it necessary or proper to submit to the jury the question what contract did the parties make. Schoonmaker v. Hoyt, 148 N. Y. 425, 42 N. E. 1059. The defendant testified that this document embraced the whole agreement with the plaintiff; that the defendants "went right along" under it. “There was no new agreement. The understanding was practically that this paper should be continued.” This document did not constitute the defendants the sales agents of the plaintiffs. It merely indicated the defendants' right to purchase the plaintiffs' engines upon specified terms as to discounts from list prices, and within specified localities. There is no proof of agency in the case, and the evidence fails utterly to support the defendants' counterclaim. Plaintiffs' exceptions indicate numerous errors calling for reversal.
Judgment reversed and new trial ordered, with costs to appellants to abide the event. All concur,
and 118 New York State Reporter
TUFFY V. HUMPHREY. (Supreme Court, Appellate Division, Fourth Department. November 17, 1903.) 1. MALICIOUS PROSECUTION-PROBABLE CAUSE EVIDENCE-PREJUDICIAL ERROR.
On the issue of want of probable cause in an action for malicious prosecution, the fact of the termination of the criminal case in favor of the accused therein being conceded by the pleadings, the admission of parol evidence of the testimony of witnesses at the trial of the criminal case was prejudicial error, the question of want of probable cause being a matter to be determined from the circumstances of the case at the time
defendant instituted the prosecution of plaintiff. Appeal from Trial Term, Oneida County.
Action by James Tuffy against Griffith Humphrey. From a judg. ment for plaintiff, defendant appeals. Reversed.
Argued before McLENNAN, P. J., and SPRING, WILLIAMS, HISČOCK, and STOVER, JJ.
Josiah Perry, for appellant.
STOVER, J. This is an appeal from a judgment in favor of the plaintiff in an action for malicious prosecution. Defendant was the owner of a whey barrel that had been left at a cheese factory of which he was a patron. Going to the factory on one occasion, his attention was called to the fact that his whey barrel had been shot into. An examination showed that it had evidently been used as a target, and had been shot into a great many times, the shots perforating both sides of the barrel. Upon making inquiries, he was informed by one Pine that the plaintiff was the person, or one of the persons, who had been engaged in shooting into the barrel. The defendant took Pine, his informant, to a justice of the peace, and a complaint charging the plaintiff with a misdemeanor was made, Pine making a statement of the affair, which he alleged he had knowledge of. Trial was had, and the plaintiff was acquitted.
Upon the trial of this action neither the information nor the affidavit of Pine were produced, and it was alleged that they could not be found. Parol evidence was attempted to be given of the contents, but it is difficult to gather from the evidence just what the statements were before the justice. Parol evidence was admitted as to the testimony given by Pine upon the trial of plaintiff, from which it was claimed that he had made a statement contradicting the one made upon the application for the warrant. Parol evidence was also introduced as to the testimony given by other witnesses upon the trial before the justice. We think the judgment must be reversed by reason of error in the admission of testimony. The question at issue in this action was the lack of probable cause, and that was to be determined from the circumstances surrounding the case at the time the prosecution was instituted. The fact that the proceedings were terminated in favor of the defendant in the criminal proceedings was admitted by the pleadings, so that the proceedings upon the trial which resulted in the acquittal were not material to the issue. While the statements of the prosecutor himself might have been competent under some circumstances, he could not be bound by the statements of witnesses