John Grierson, Appellant, v. Thomas F. Mason, Respondent

John Grierson, Appellant, v. Thomas F. Mason, Respondent. (Argued March 29, 1875; decided April 13, 1875.) Parol evidence may be given to show that a writing, purporting to be a contract, was not in fact intended by the parties as such. In an action brought to recover the proceeds of goods sold by defendant as agent, he set up as a counter-claim his employment, by plaintiff's assignors, to sell on commission, with an agreement, on their part, that his commissions should not be less than $1,500. Plaintiff, in reply, produced a written agreement, drawn up by defendant, and signed by plaintiff’s assignors, in substance giving defendant the sole and exclusive right to sell their goods for a specified commission, but containing no guarantee as to the amount of commissions. Defendant thereupon gave evidence in substance that the writing was executed, not as the contract between the parties, but to enable defendant to procure advances upon the goods, and was delivered to the person making the advances. Held, that the evidence was proper; and that the decision of the referee holding the writing not to be the contract between the parties was sustained thereby. Appeal from judgment of the General Term of the Supreme Court in the first judicial department, affirming judgment in favor of defendant entered upon the report of a referee. (Reported below, 1 Hun, 113; 3 N. Y. S. C. [T. & C.], 185.) This action was brought to recover moneys alleged to be in the hands of defendant, the proceeds of goods sold by him as agent. The complaint alleged, in substance, that defendant was, on the 1st of May, 1870, employed by the firm of J. S. Cropper & Co. as agent to sell the goods manufactured by them, upon a commission of five per cent; that on the 31st of October, 1870, said firm sold and assigned to plaintiff all their firm business and assets ; and that thereafter defendant continued in his employ under the same agreement; and that defendant held in his hands, as the proceeds of sales, less commissions, $1,061.82. Defendant set up as a counter-claim, and gave evidence tending to show that, by the agreement under which he was employed, it was agreed by said firm that his commissions should amount to $1,500 per annum, and, if not, they would make up the deficiency; that they neglected to furnish him goods; and that, applying the avails of all sales remaining in his hands, there was still due him, under the agreement, $377.24. The plaintiff thereupon introduced in evidence the following written instrument: “ This agreement, made this the 30th day of April, 1870, between John S. Cropper & Co., of Newark, New Jersey, and Thomas F. Mason, of Brooklyn, New. York, the said John 8. Cropper & Co. agree to give the said Thomas F. Mason the sole and exclusive right to sell all the goods manufactured by them at such prices and on such terms as they may from time to time determine, and the said Thomas F. Mason is to receive as commission five (5) per cent commission on such, and make returns on the first of each month of all sales. “JOHN S. CROPPER & CO.” Defendant testified that this instrument was written by himself; that it was not in fact made until July or August, and was then made, not as the contract between the parties, but at the request of one John Woods, who required it as a condition of advancing money on the goods to said firm, and for the sole purpose of inducing said Woods to make such advances, and was delivered to said Woods. The referee found the agreement to be as claimed by defendant, and that the writing was executed solely for the purpose testified to by him, and was not the agreement between the parties, and directed judgment for defendant, which was entered accordingly. A. C. & M. H. Ellis for the appellant. The agreement controls the rights of the parties, and is binding upon defendant although not signed by him at the bottom. (Clason v. Bailey, 14 J. R., 484, 486; Justice v. Lang, 42 N. Y., 507; Worral v. Munn, id., 229; Gage v. Jaqueth, 1 Lans., 207; Randall v. Van Vechten, 19 J. R., 60 ; Davis v. Shields, 26 Wend., 350.) The referee erred in giving effect to defendant’s testimony in relation to the parol guarantee. (Durgin v. Ireland, 14 N. Y., 326; 2 Phil. Ev. [5th Am. ed.], C. & H. Notes, 534, 560; Mumford v. McPherson, 1 J. R., 413; Mayor of N. Y. v. Bklyn. L. Ins. Co., 4 Keyes, 468.) R. C. Elliott for the respondent. The rule that parol evidence is not admissible to vary a written contract does not apply in a case where the original contract was verbal and entire, and a part only of it reduced to writing. (1 Green], Ev., § 284 a, and note, § 304; 2 Pars. on Con. [5th ed.], 553 ; Stark, on Ev., §§ 722, 724, note n, 671, 726, 727; Brick v. Cole, 4 Sandf., 79.) Parties and privies to a written instrument are not estopped from contradicting it in a controversy with a stranger. (Strader v. Lambeth, 7 B. Mon., 589; Reynolds v. Magness, 2 Wend., 26; Venable v. Thompson, 11 Ala., 147; Chit. on Con. [10th Am. ed.], 103, note e.) The evidence given in relation to the instrument was competent. (Griffith v. Hardenberg, 41 N. Y, 469; Barney v. Worthington, 37 id., 115; French v. Carhart, 1 id., 102.) [MAJORITY — Miller, J.] Miller, J. Upon the trial of this case there was evidence to show that on the first of May, 1870, the- defendant entered into the employment of John S. Cropper & Co., and, upon their sale and assignment of the business, continued in the plaintiff’s employment by virtue of á verbal agreement that he was to receive a certain commission upon the sale of goods, which should amount to at least the sum of $1,500 a year. To contradict this evidence a written agreement was introduced by the plaintiff, bearing date April 30,1870, signed by the firm of J. S. Cropper & Co., to the effect that the defendant was to receive a commission of five per cent upon the sales made. It also appeared that the defendant drew the instrument, that it was executed by the firm within three or four months after the commencement of his employment, and, as he testifies, it was made, and the referee so finds, with sufficient evidence to sustain the finding, to induce one Woods to advance money upon the goods, and that it was given to Woods and kept by him. The question is, under the foregoing facts, whether parol proof of the purpose for which the instrument was executed was competent, and the referee erred in giving effect to it as he did in his report. The object of the testimony was to show that the instrument was executed for a specific purpose, and that purpose being accomplished, was of no effect in changing the contract previously made with the defendant. I think that it was competent evidence for this purpose. The defendant had made out a contract. The plaintiff proved an instrument which altered the contract, and the defendant had a right to prove that the instrument introduced was not intended as an alteration of the contract, but with a view of accomplishing a particular purpose. Such evidence was not given to change the written contract by parol, but to establish that such contract had no force, efficacy or effect. That it was not intended to be a contract, but merely a writing to be used in inducing Woods to make advancements upon the goods. This is in avoidance of the instrument and not to change it, and I do not see why the testimony was not as competent in this case as it would be to show that a written instrument was obtained fraudulently, by duress or in an improper manner. Such evidence does not come within the ordinary rule of introducing parol evidence to contradict written testimony, but tends to explain the circumstances under which such an instrument was executed and delivered, or to show that it was canceled or surrendered. It would, I think, have been proper to show that the instrument was given up, and equally so that it did not constitute the entire contract, as it was only for a special purpose. There are numerous cases in the books where the design and object of an instrument embodying the main portion of an oral agreement may be shown, and it is held that a receipt for goods changes the obligation of a preceding parol agreement. (3 Kernan, 569.) It is also held that the purpose for which a writing was executed may be proved by parol when not inconsistent- with its terms. (See 1 Keyes, 532.) This case is far stronger than any cited, because the evidence was a perfect answer to the writing, and showed it had no application to the agreement. There was no error on the trial, and the judgment should be affirmed, with costs. All concur. Judgment affirmed.