
    Manuel E. Barranco et al., Resp’ts, v. Roger B. Towner, App’lt.
    
      (Brooklyn City Court, General Term,
    
    
      Filed March 25, 1895.)
    
    Evro ence—Competency.
    A party may testify to a conversation at which a sale was negotiated, though the contract is in writing, in contradiction of testimony as to the same conversation previously introduced by the adverse party.
    Appeal from a judgment in favor of plaintiffs.
    
      Aynes & Walker, for app’lt; Jalius Lehmann, for resp’ts.
   Per Curiam.

We have carefully examined the record in this case, and are of opinion that the exceptions at folios 96 and 97 were well taken. At folio 26, Mr. Levison stated, on behalf of the plaintiffs:

“I had a conversation with him [meaning the defendant] at that time; and as a result of that conversation, I had business transactions with him. I sold Mr. Towner a bill amounting to about $985. I did not sell him the same brand that he purchased before. I sold him the same cigars, but a different brand.”

Again, at folio 83, Levison testified, on behalf of plaintiffs:

“The goods ordered in October were similar to the goods ordered in March previous; same cigars, but under a different label. Q. What was stated at the time you took the order in October ? A. When I came into Mr. Towner’s I asked him if he wanted any of my cigars any more. He said, ‘Yes; I can use your cigars; and then he gave me an order.”

The following question was asked the defendant by his counsel at folio 96:

“Q. What conversation did you have with Mr. Levison, the salesman of plaintiff, at the time you gave the order for the goods in suit?”

The question was excluded, on the ground that the contract was in writing. If the plaintiffs’ counsel relied on the contract contained in the letters, he should not have examined Levison as to conversations with defendant. As he did, we think the defendant should have had the privilege of, at least, contradicting the testimony of Levison. The letters, if to be treated as the contract were silent as to the quality of a portion of the goods. As to the first item of Exhibit 6, plaintiffs’ Exhibit 4 shows that the cigars were to be of the same size as a certain brand sold in March previous, but nothing is stated in the letter as to quality; and it is the same as to the item in Exhibit 6.

Judgment reversed, order of reference vacated, and a new trial granted ; costs to appellant to abide the event.

. All concur.  