
    (57 Misc. Rep. 549.)
    McCASKEY REGISTER CO. v. GREEN.
    (Madison County Court.
    January, 1908.)
    Evidence—Parol Evidence—Affecting Writings.
    A contract for the purchase of an account register was signed by the agent of the vendor and by the purchaser, who made a payment on account. The contract did not give the dimensions of the register, and in an action to recover the balance of the price it appeared that the register did not fit the defendant’s safe. Held, that testimony that at the making of the contract it was agreed that the register should fit the safe was competent, requiring judgment for defendant for the amount of his initial payment.
    [Ed. Note.—For cases in point, see Cent. Dig. vol. 20, Evidence, §§ 2030-2051.]
    Appeal from Justice Court.
    Action by the McCaskey Register Company against John Green. Judgment for defendant before a justice, and plaintiff appeals. Affirmed.
    John H. Johnson, for appellant.
    E. W. Cushman, for respondent.
   KILEY, J.

This is an appeal from a judgment of a justice of the peace, rendered on the 28th day of November, 1906, dismissing the complaint of the plaintiff and rendering a judgment for $6, with interest and costs, amounting to the sum of $10.05, in favor of the defendant.

The evidence shows that on March 30, 1906, the plaintiff and defendant entered into an agreement, partially written and printed, which is known as written agreement, in and by which the plaintiff agreed to sell and the defendant agreed to purchase “one McCaskey account register, style No. 4, No. of Accts. 192.” The price agreed upon, as stated in the contract, was $72, $6 to be paid on the date of contract, and $11 monthly thereafter, until the whole sum was paid. The contract was signed by A. P. Lewis as plaintiff’s agent, for the plaintiff, and by the defendant. The $6 was paid. The contract provided that it covered all agreements between the parties, and that it was subject to acceptance by the plaintiff at its place of business at Alliance, O. It also provided, in subdivision 7 of the conditions printed upon said paper writing, as follows:

“It is expressly agreed that this order shall not be countermanded, and a receipt of a copy of the same is hereby acknowledged.”

In the upper left-hand corner the paper is designated as “Agent’s Contract.” We have here an agent’s contract with the purchaser, and the purchaser’s order to the plaintiff, which he cannot countermand, but which the principal of the seller, or agent, can annul without the consent of the purchaser. There are no material disputed questions of fact, as appears from the return. The agent of the plaintiff signed the writing and the defendant signed the writing and paid the $6. The original contract and order attached to the return shows that dimensions, in feet and inches, of the machine or register bargained for, are not given; and its size and kind is in no other wise given, except as “style No. 4, No. of Accts. 192.”

It appears that, on the date and at the time when the contract and order was executed, the defendant said it must fit his safe or it would be of no use to him, and that, if it would not go into his safe, he wanted the order destroyed. The agent who sold the register said it would fit the safe, and upon the trial of this action in Justice’s Court swore that the register was sold with the idea that was to fit the safe. The plaintiff (appellant) urges that the force of this evidence is to change by parol a written contract, and that the evidence was not only incompetent, but that it was no defense under the provisions of the contract and order. The defendant urges that it does not tend to change the contract or contradict its terms, but that the evidence is competent, as showing the conditions and stipulations under which the contract was to become operative and enforceable. If the effect of the evidence is to change a written and completed contract by parol evidence, then the evidence was incompetent, and a judgment, based upon it cannot stand. Lamson Consolidated Store Service Co. v. Hartung (Com. PI.) 19 N. Y. Supp. 233; Love v. Hamel, 59 App. Div. 360, 69 N. Y. Supp. 251; Gormully & Jeffery Mfg. Co. v. Cross, 25 Misc. Rep. 336, 55 N. Y. Supp. 527; Thomas v. Scutt, 127 N. Y. 133, 27 N. E. 961.

The respondent, as stated above, points out that his contract does not state dimensions as to size of register, only the number appearing, which refers to the number of accounts it will accommodate; that this register was ordered with a view of keeping in a particular place, viz., his safe; and that the stipulation as to the size it should be in feet and inches explains and does not contradict the contract. It appears from the contract itself that it was not complete at the time the stipulation was made, to wit, on the day of the date of contract, as it had not then been accepted by the plaintiff, and could not have been under the circumstances, at that time, and urges that this order, or contract, comes under the line of cases as held in Chapin v. Dobson, 78 N. Y. 74, 34 Am. Rep. 512, Juilliard v. Chaffee, 92 N. Y. 529, Jamestown Business College Ass’n v. Allen, 172 N. Y. 291, 64 N. E. 952, Higgins v. Ridgway, 153 N. Y. 130, 47 N. E. 32, and Harnickell v. N. Y. Life Ins. Co., 111 N. Y. 390, 18 N. E. 632, 2 L. R. A. 150.

That the register does not fit defendant’s safe is testified to by both parties, and as a question of fact is deemed to be admitted. Under the cases last above cited, I am compelled to hold the evidence was competent, and the stipulation, or condition, that it should fit the safe could be made by the defendant as a condition precedent to his liability upon the contract, and that the question was properly disposed of by the justice who tried the case below.

Judgment affirmed, with costs.  