Patrick Lillis, Respondent, v. George E. Mertz and Others, Appellants

Patrick Lillis, Respondent, v. George E. Mertz and Others, Appellants. ■Sale of merchandise — contract by letters — when ' it cannot be varied by parol evidence. In an action brought to recover a balance alleged to be due upon a contract under which the plaintiff furnished brick to the defendants, it appeared that the defendants had paid the agreed price for the brick and that the controversy related to the freight. July 37, 1901, the defendants wrote the plaintiff as follows: “Please give us quotation on your best hard burned common brick F. O. B. cars Wardenclyffe, L. I., say about 175,000 to 300,000.” In reply to this letter the plaintiff, on the fifth of August, writing from Port Jefferson, said: “ The brickworks at War•denclyffe is shut down for some time nothing doing whatever. Will furnish you good hard merchantable Long Island brick at §6.15 per M. F. O. B. cars, three days option.” On the sixth of August the defendants wrote to the plaintiff, saying, among other things, “Tour letter of August 5th received naming price of §6.15 per M. for the brick F. O. B. cars, we take it you mean F. O. B. cars Wardenclyffe, if this is so we will require 135,000 at present.” The plaintiff did not answer the last-mentioned letter. August tenth the defendants wrote asking for a shipment of one carload of brick as a sample, and on August thirteenth the plaintiff, without making any suggestion that he had any different understanding of the contract than that suggested in the defendants’ letter of August sixth, wrote the defendants as follows: “ Tour favor just at hand. I expect car load of brick at Wardenclyffe station this p. m. Surely to-morrow eve. Tou may expect prompt delivery ail along until the final end.” Held, that the correspondence set forth a complete contract between the parties, and that evidence that it had been modified by the defendants’ foreman in charge of the work at Wardenclyffe, in so far as it related to the payment of freight, was incompetent, especially as the foreman testified that he was not authorized to act as the defendants’ agent. Appeal by the defendants, George E. Hertz and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Suffolk on the 29th day of September, 1902, upon the verdict of a jury, and also from an •order entered in said clerk’s office on the 26th day of September, 1902, denying the defendants’ motion for a new trial made upon the minutes. Be Witt H. Lyon, for the appellants...... Thomas J. Ritch, Jr., for the respondent. [MAJORITY — Woodward, J.:] Woodward, J.: The plaintiff brought this action to recover the balance alleged to-be due upon a contract for furnishing brick to the defendants, the controversy arising over the freight, it being conceded that the defendants have paid the. agreed price for the brick. On the 27th of July, 1901, the defendants wrote the plaintiff as follows: “ Please give us quotation on your, best hard burnt common brick F. O. B.. cars Wardenclyffe, L. I., say about 175,000 to 200,000:” In reply to this letter the plaintiff, on the fifth of August, writing from Port: Jefferson, says: “The brick works at Wardenclyffe is shut. down for some time; nothing doing whatever. Will furnish you good hard merchantable Long Island brick at $6.15 per Hi F. O. B. cars, three days option.” On the sixth of August the defendants wrote-to the plaintiff, saying, among other things, “ Your letter of August-5th received naming price of $6.15 per-H. for the brick F. O. B. cars, we take it you mean F. O, B. cars Wardenclyffe, if this is so-we will require 125,000 at present.” The plaintiff offered these letters in evidence in support of his contract, and then offered, and was permitted to put in evidence, over the objection and exception of the defendants, to show that this contract, in so far as it related to the payment of freight, was modified by the defendants’ foreman,, who had charge of the work at Wardenclyffe. It can hardly be doubted that this was error; the contract between the parties was-expressed in writing, and aside from the fact that the evidence does-not support agency on the part of the defendants’ foreman, the-plaintiff could not- show a different contract between the parties-than that which he had proved by the writings offered in evidence. The defendants on the sixth of August wrote stating their understanding-of the offer. This letter was not answered. On the tenth of August the defendants wrote asking for a shipment of one carload of brick as a sample car, and on the thirteenth of August,, without making any suggestion that the plaintiff had any different, understanding of the contract than that suggested in the defendants’ letter of August sixth, the plaintiff wrote the defendants as follows: “ Your favor just at hand. I expect car load of brick atWardenclyffe station this p. m. Surely to-morrow eve. You may expect prompt delivery all along until the final end.” It seems to us entirely clear that the correspondence sets forth a complete contract between the parties, and that it could not be varied or controlled by any alleged arrangement made between the plaintiff and the defendants’ foreman, who testifies that he was not authorized to act as the agent of the defendants. The judgment should be reversed, with costs. Goodrich, P. J., Jenks and Hooker, JJ., concurred; Hirschberg, J., concurred in memorandum, [CONCURRENCE — Hirschberg, J. (concurring):] Hirschberg, J. (concurring): I concur. I think there is an additional ground for reversal of the judgment and order. In view of the conflict in the evidence as to the scope and extent of the authority of the defendants’ foreman, I think it was error to charge the jury, as matter of law, that he was their agent with power to make or vary contracts. Judgment and order reversed and new trial granted, costs to abide the event.