STRAUSS v. CHAS. H. HEER DRY GOODS CO. (Supreme Court, Appellate Term, First Department. March 28, 1917.) 1. EVIDENCE 417(12)-PAROL EVIDENCE AFFECTING WRITING-INCOMPLETE WRITING.

An order for goods, signed by defendant, reading, "Please ship on or about September 20th your assortment A of laces, amounting to approximately, but not exceeding, $1,000.00," showed on its face that the real contract was oral, only partially reduced to writing in the order, so that defendant was entitled to prove the entire contract.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 1886, 1887.] 2. SALES 288(2)-RIGHT TO RETURN FOR VARIANCE-RETENTION AND RE

SALE.

Retention of goods by the buyer, and partial sale of them after the fullest opportunity to examine, was a waiver of any right to return the goods to the seller on ground of variance from the contract.

[Ed. Note. For other cases, see Sales, Cent. Dig. §§ 818, 819.]

3. SALES 363-ACCEPTANCE OF GOODS-QUESTION FOR JURY.

Where a contract for the sale of laces provided that the seller should also send the buyer other laces, which the buyer might keep and display for a period of two weeks, the seller agreeing that the buyer might return such part as it did not wish to keep, paying only for goods retained, retention of such goods by the buyer for three weeks did not as matter of law evince any purpose to buy, since time must have been allowed to prepare the goods for display, and then, at the end of the two weeks of display, to pack them for shipment, so that the question was for the jury. [Ed. Note.-For other cases, see Sales, Cent. Dig. § 1064.]

Appeal from City Court of New York, Trial Term.

Action by Julius Strauss against the Chas. H. Heer Dry Goods Company. From a judgment for plaintiff, and an order denying defendant's motion for new trial, the latter appeals. Judgment reversed, and new trial granted.

Argued March term, 1917, before BIJUR, HENDRICK, and WEEKS, JJ.

Harold Remington, of New York City, for appellant.

Edward B. Levy, of New York City (I. Maurice Wormser and Edward B. Levy, both of New York City, of counsel), for respondent.

HENDRICK, J. The court below directed a verdict against defendant, which brings this appeal. The action was brought in part for a quantity of laces referred to as assortment A. The gist of the order signed by defendant read as follows:

"Please ship us on or about September 20th your assortment A of laces, amounting to approximately, but not exceeding, $1,000.00."

The order was accepted and the goods were received by defendant before the middle of October. On or shortly after the 1st of November, they were returned, except about $200 worth, which had been sold. At the trial defendant attempted to prove its allegations that the goods were inferior to the goods described by plaintiff prior to the giving of the order. The evidence was barred on the ground that the or

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

der constituted the contract and a written contract cannot be supplemented by parol.

[1] Appellant now argues that the order shows on its face that the real contract was oral, and only part of it was reduced to writing; and in such cases he should be permitted to prove the entire contract. He cites the following authorities: Chapin v. Dobson, 78 N. Y. 74, 34 Am. Rep. 512; Brigg v. Hilton, 99 N. Y. 517, 3 N. E. 51, 52 Am. Rep. 63; Guttentag v. Whitney, 79 App. Div. 596, 80 N. Y. Supp. 435; Hellinger v. Grant, 69 Misc. Rep. 564, 127 N. Y. Supp. 893; Lowell v. Alton, 82 Misc. Rep. 431, 143 N. Y. Supp. 995; Andrews Co. v. Morgan, 169 App. Div. 658, 155 N. Y. Supp. 1110. That seems to be a well-established doctrine, and defendant asks, quite pertinently, how a business man could be expected to purchase goods without any further description than the words "your assortment A," or without any specification of price except the words "not exceeding $1,000.00." Was it understood that the seller should be free to send on goods, new or old, salable or nonsalable, and at any price per piece that might be agreeable to his sense of honesty and propriety? Or was an agreement made of which the writing was only a part? I think these contentions are reasonable and that they should be decided in defendant's favor.

[2] But another principle of law is involved, which renders the above argument irrelevant. Plaintiff argues that defendant received the fullest kind of an itemized bill, consisting of the invoice, weeks before the goods were returned, and that it received the goods themselves the fore part of October. It also appears that the goods were displayed for sale and that they were sold to the amount of over $200. On these facts plaintiff makes the point that it is not material whether the contract was oral or written, for, having both the goods and the invoice in its possession, defendant could determine without delay whether the goods received and those contracted for corresponded in quality and in price. The fact that the goods were retained and partially sold after the fullest opportunity to examine them is a waiver of the right to return them to the seller on the ground of variance from the contract. Plaintiff cites the following authorities: Brown v. Foster, 108 N. Y. 387, 15 N. E. 608; Richardson v. Levi, 69 Hun, 432, 22 N. Y. Supp. 352; Kienle v. Klingman, 24 Misc. Rep. 708, 53 N. Y. Supp. 788; Silberstein v. Blum, 167 App. Div. 660, 153 N. Y. Supp. 34. So far as the ruling on this branch of the case is concerned I think that the court below was right.

[3] Incorporated in the written part of the contract is another term of which the following is the substance:

"It is expressly understood that you are also to send us other laces as assortment B, consisting of higher grade of goods, which we may keep and display for a period of two weeks, you agreeing that we may return to you such part thereof as we do not wish to keep, paying only for the goods retained by us."

Under the evidence the jury could have found that those goods were retained by defendant only about three weeks. As time must be allowed to prepare them for display, and then at the end of the two weeks

to pack them for shipment, I cannot think that as matter of law defendant evinced any purpose to buy the goods. If the parties had agreed that the retention of the goods for a greater period than two weeks, should be considered a purchase, then perhaps the decision could be upheld. But I find no such stipulation. In my opinion the evidence presented a question of fact for the jury. The question of time was uncertain, and there is no concession as to the terms of the contract. The judgment should be reversed, and a new trial granted, with costs to appellant to abide the event. All concur.

(177 App. Div. 294)

VIVIRITO v. NEW YORK CENT. & H. R. R. CO.

(Supreme Court, Appellate Division, Second Department.

March 30, 1917.)

1. EVIDENCE 419(20)-PAROL EVIDENCE-CONTRADICTING WRITING. Against written release of claims for personal injury, for $5,000, recited to be "the sole consideration and without any other promise or agreement," oral promise to furnish employment on recovery cannot be shown. [Ed. Note. For other cases, see Evidence, Cent. Dig. § 1928.]

2. COMPROMISE AND SETTLEMENT 24-DIRECTING VERDICT.

Verdict for defendant, in personal injury action, was properly directed; it being shown without contradiction that the settlement agreement, made and executed with full understanding, had been fully carried out.

[Ed. Note. For other cases, see Compromise and Settlement, Cent. Dig. § 95.]

Appeal from Trial Term, Kings County.

Action by Costrenze Vivirito against the New York Central & Hudson River Railroad Company. From a judgment, on a verdict directed for defendant, sustaining the validity of a release in settlement of plaintiff's claim for personal injuries, and from an order denying motion for new trial, plaintiff appeals. Affirmed.

Argued before JENKS, P. J., and MILLS, RICH, PUTNAM, and BLACKMAR, JJ.

Isaac V. Schavrien, of Brooklyn, for appellant.

Robert A. Kutschback, of New York City, for respondent.

PUTNAM, J. On January 17, 1913, plaintiff received personal injuries in alighting from defendant's train at Hartsdale, N. Y. Plaintiff was an Italian, who had worked as a blacksmith. He was 55 years old, married, with a family. In his suit for personal injuries, the second defense raised was a general release, given March 13, 1913, by which plaintiff released all claims for the sum of $5,000, which was recited to be "the sole consideration and without any other promise or agreement." This sum was duly paid and acknowledged.

[1, 2] Plaintiff's witnesses sought to show that defendant's agent had orally promised that, when he would become able to walk about, he should have a job with the defendant. But such alleged inducement, being in the teeth of the written release, was inadmissible. No

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

fraud or deceit was shown. Several interviews had been had at plaintiff's house. After various offers had been rejected, the sum of $5,000 was accepted at an interview extending over three hours. Plaintiff executed the release, when counseled by a group of his family consisting of his wife, his son Joseph, who was then in the high school, but at the time of the trial a student in the University of Pennsylvania, and his brother-in-law. The negotiations had been in Italian. The document was interpreted to him with care to have plaintiff comprehend the details and finality of the settlement. As executed, the instrument was exactly as both parties intended. Plaintiff had been distinctly told that the matter of a future job could not be a part of the release. When again plaintiff sought to include such an arrangement for his employment, he was answered: "It is no use; the law don't permit it." Thus the release was complete, and expressed what plaintiff knew it contained, without the slightest ground to impeach it for fraudulent omission, or any basis to have the instrument reformed. As it was shown, without contradiction, that plaintiff knew what he had agreed, and comprehended what he signed, and as defendant had fully carried out the settlement, the jury were rightly directed to find for the defendant.

The judgment and order should be affirmed, with costs. All concur.

SILVER v. MERMELSTEIN et al.

(Supreme Court, Appellate Term, First Department. March 28, 1917.) 1. WITNESSES 380(5)-EXAMINATION-RIGHT TO DISCREDIT.

A party who calls a witness, and by whose adverse testimony he is manifestly surprised, may show previous contradictory statements of the witness for the purpose of explaining the circumstances under which he called him.

[Ed. Note.-For other cases, see Witnesses, Cent. Dig. §§ 1214, 1219.] 2. WITNESSES 380(5)—IMPEACHMENT-RIGHT OF PARTY CALLING.

Where a witness called by defendant developed manifest hostility, even exhibiting to the jury money which he claimed to have received from defendant, defendant may examine the witness as to previous statements contradictory of his present testimony.

[Ed. Note. For other cases, see Witnesses, Cent. Dig. §§ 1214, 1219.]

Appeal from City Court of New York, Trial Term.

Action by Samuel Silver against David Mermelstein and another. From a judgment for plaintiff, and an order denying their motion for new trial, defendants appeal. Reversed, and new trial granted.

Argued March term, 1917, before BIJUR, HENDRICK, and WEEKS, JJ.

Harold M. Phillips, of New York City, for appellants.

Breitbart & Breitbart, of New York City (Bernard Breitbart, of New York City, of counsel), for respondent.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

BIJUR, J. Plaintiff sued for injuries alleged to have been received while working in a court or yard, by reason of the fall of a cracked piece of coping from defendants' building. The identification of the piece of coping became an important issue at the trial, and defendants called a witness in that connection. Although this witness was known to plaintiff, and had been in court throughout the trial, he had not been called by plaintiff. When examined by defendants' counsel, he testified to matters in a manner directly to support plaintiff's case and plaintiff's own evidence. While under examination of defendants' counsel, he volunteered the statement that defendants had given him money "for this day," and volunteered the further statement that defendants had said, "I will pay you fine and good." Defendants' counsel thereupon remarked:

"This witness is a hostile witness. It is very plain he has taken money from Mermelstein [defendant]," he said, "to testify for him, and then deliberately testify adversely and with hostility."

Defendants' counsel had asked the following questions:

"Q. You told Mr. Mermelstein that you found these pieces of rock all around the yard?"

An objection to this question was sustained over defendants' exception. Also:

"Q. Didn't you tell me, between 1 and 2 o'clock this afternoon, that you did not see a piece of brick any place around there, and that Hershman [one of plaintiff's witnesses] did not give you any?"

This also was excluded upon objection over defendants' exception; nor was defendants' counsel permitted to state the purpose of these questions.

[1] Although the right of a party to inquire of a witness called by him, and by whose adverse testimony he is manifestly surprised, to show any previous contradictory statement of the witness, has been a matter of considerable question, I think it is well settled in this state that he is entitled to elicit such testimony and other evidence of possibly a like character for the sole purpose of explaining the circumstances under which he has called the witness; not, however, for the mere purpose of discrediting or impeaching a witness called by himself. Bullard v. Pearsall, 53 N. Y. 230; Wright v. Grant, 6 N. Y. St. Rep. 363. See, also, Coulter v. American Merchants Ex. Co., 56 N. Y. 590, although that case was subjected to some criticism in People v. De Martini, 213 N. Y. 203, 214, 107 N. E. 501, L. R. A. 1915F, 601; also Putnam v. U. S., 162 U. S. 697, 703, 705, 16 Sup. Ct. 923, 40 L. Ed. 1118.

[2] While the precise limitations of the extent to which the surprised party may pursue the inquiry cannot be laid down because of the varying circumstances of each case, I cannot avoid the conclusion that the interests of justice and fairness demand that some relief be accorded a party who has been trapped into calling as his own an adverse witness. These considerations are emphasized in the instant case by the fact that much of the hostile evidence was volunteered by the witness, who apparently even went to the extent of exhibiting to 164 N.Y.S.-6