COONS a. CHAMBERS

COONS a. CHAMBERS. Court of Appeals; December Term, 1854. Evidence.—Explanation oe Written Contract. It is a question of fact, when an instrument bearing no date was made. Correspondence between the parties to an agreement, bearing date prior to the agreement, is inadmissible (the date being unimpeached) in explanation of the written contract. Appeal from judgment for plaintiff, upon report of referee. This action was brought in the Supreme Court, in the Third District, to recover for services alleged to have been performed •by plaintiff for defendant, pursuant to a written agreement, bearing date the thirtieth 'November, 1849. The cause was ■referred. In the course of the hearing before the referee, the plaintiff offered in evidence with a view to explain the true construction of the contract, a letter to him from defendant, dated the nineteenth October, 1849. The defendant objected that it could not be received in evidence for that purpose, because it bore date prior to the contract. But the referee overruled the objection, and admitted the evidence. The defendant excepted. The referee having reported upon the issues, in favor of the -plaintiff, the defendant appealed from the judgment entered on his report, to the general term; where it was affirmed; and defendant appealed to the Court of Appeals. J. V. loomis, for. appellant. Q. Stow, for respondent. [MAJORITY — Gardiner, J.] Gardiner, J. This action was upon an agreement between these parties under seal. The subjects of it were, a patent for the territory of New York, for the making and vending of elevators, for the raising of muck, mortar, merchandise and other weights, and the construction of these machines by the plaintiff in pursuance of the specifications of the patent, and with such improvements as might be suggested, in the language of the agreement, by 'the inventive genius of the plaintiff. The 'main controversy between the parties relates to the meaning and true construction of the contract between them. The original agreement was dated on the 30th of Nov., 1849, and was executed by Coons only. “ In connection with and addition to” this contract, as the instrument recites, another writing was endorsed on the original contract, containing provisions different from it in reference to the payment of the expenses to be incurred in the construction of the machines, which was executed by both parties, but not under seal. The defendant gave in evidence a third instrument, signed and sealed by Coons, the plaintiff, bearing date the 17th January,. 1850, purporting to be a receipt of “ twenty-five dollars, part of fifty dollars, named as funds which were to have been paid,, .on or before the lath December last.” The receipts contained' a provision upon the part of Coons, “not to call for the' remaining $25 until after, the completion of two of said machines named in the annexed article, and • to await the directions of the defendant, as to the third, until he should conclude upon the form.” The construction of those various instruments, containing distinct stipulations in reference to the same subject, depends essentially, upon the order of time when they were executed. If the writing indorsed in the original article was, as the plaintiff insists, made subsequent to the-17th of January, the date of the receipt, it would annul or materially modify the stipulation of that instrument, instead of being controlled by them. This was a question of fact,, which it is to be presumed that the referee has found in favor of the plaintiff; which is accordingly approved by the Supreme-Court, in their opinion, and with which this court will not interfere. If the assumption is well founded, I can perceive-no objection to the interpretation which the Supreme Court has given to the contract, as a whole. But the case is here presented on a bill of exceptions, and. upon the hearing before the referee, the plaintiff offered in evidence a letter from the defendant to the plaintiff, dated the-19th of October, 1849, some time prior to the agreement upon which the plaintiff had counted in his complaint. It contains directions to the plaintiff “ to use his best judgment in getting-up the machines, and to do one at a time, and as cheap as practicable, and to pay for the work when completed,” &c. This evidence was objected to, on- the ground that, it was anterior to the contract, and the objection overruled by the referee, and his decision excepted to by the defendant. The evidence was clearly inadmissible. The merits of the controversy, so far as the opinion can be formed from the case before us, would seem to be with the plaintiff. But upon a bill of exceptions, I do not perceive any way in which the judgment can be sustained. It must be reversed for the reason' assigned, with costs to abide the event.