
    SHELMIRE v. WILLIAMS & CLARK FERTILIZER CO.
    (Supreme Court, General Term, Fifth Department.
    April, 1893.)
    1. Master and Servant—Terms of Employment—Evidence.
    In an action for plaintiff’s unearned and unpaid salary, on the ground that he was discharged at the end of the first year of his employment, in violation of a written contract executed in duplicate, plaintiff introduced in evidence the duplicate in his possession, showing an employment for an additional two years, at an increased salary, after the expiration of the first year. The duplicate retained by defendant showed that defendant was to have “the refusal” of plaintiff’s services for such two additional years. Held, that plaintiff had failed to sustain the burden of proof resting on him, since the duplicate in defendant’s possession must be deemed equally true and binding as the one in plaintiff’s possession.
    2. Same—Parol Evidence to Vary Written Contract.
    In such action, brought in a court having no general equity jurisdiction, and with no power to reform the contract, evidence of paroi negotiations leading up to the written contract is not admissible to show that the hiring was for a term of three years, instead of for only one, with an option by defendant for two additional years.
    Appeal from Monroe county court.
    Action by Louis J.- Shelmire against the Williams & Clark Fertilizer Company for salary alleged to be owing plaintiff under a written contract with defendant. The action was originally brought in the municipal court for the city of Rochester, where there was a judgment in defendant’s favor. On appeal to the county court, there was a verdict in plaintiff’s favor. From a judgment entered thereon, and from an order denying defendant’s motion for a new trial, made on the judge’s minutes, defendant appeals.
    Reversed.
    Argued before DWIGHT, P. J., and LEWIS, MACOMBER, and HAIGHT, JJ.
    R. E. White, for appellant.
    T. D. Wilkin, for respondent.
   MACOMBER, J.

This action was originally brought in the municipal court of the city of Rochester, and, on the trial thereof before one of the judges of that court, resulted in a decision in favor of the defendant upon the merits. On appeal by the plaintiff from such judgment, demanding a new trial, the case was retried in the county court of Monroe county before the county judge, and a jury, and resulted in a verdict in favor of the plaintiff for the amount claimed in the complaint, and to which the plaintiff was entitled, provided he had - any right of action. The action was brought to recover the plaintiff’s unpaid and unearned salary for five months from September 30, 1891, upon the ground of a discharge of the plaintiff from the employment of the defendant in violation of the written agreement between the parties. This contract bears date October 3, 1890. It appears, however, that it was executed in duplicate, or in supposed duplicate, consisting of a letter from the defendant to the plaintiff, and the latter’s acceptance of the same. The one relied upon by the plaintiff is as follows:

“Mr. L. X Shelmire-—Dear Sir: We will pay you tile sum of eight hundred dollars, and traveling expenses, for the term of one year, commencing October 1st, 1890, and ending September 30, 1S91. We to have your services, for two additional years at a salary of one thousand dollars per year and expenses, as above stated. You to attend to shipping, and such office work as wo may assign to you, and traveling on the road, soliciting orders, if we-wish you to.”

The plaintiff, duly accepted, in writing, the terms of the foregoing proposition, properly indorsed upon the letter. The papeiwhich was retained by the plaintiff was marked “Copy,” although it was in fact signed by the defendant as an original, and accepted as an original by the plaintiff. The contract retained by the defendant, executed in the same way, was in all respects like the one above quoted, except that in the second sentence it read, “We to-have the refusal of your services for two additional years,” instead of “We to have your services for two additional years.” It is plain, therefore, if the contract relied upon by the plaintiff was the true- and only one between the parties, that the judgment appealed from should be sustained, while it is equally apparent that, if the contract retained by the defendant is the true one, no cause of action was made out by the plaintiff; for it is clear that a contract for the “refusal” of the services of the employe for the two years would not obligate the employer to accept such services. But for the purposes of arriving at the intent of the parties, and particularly for the purpose of determining any liability of the defendant, these two instruments must be construed together as constituting the agreement between the parties. Morss v. Salisbury, 48 N. Y. 648; Martin v. Martin, (Com. Pl. N. Y.) 20 N. Y. Supp. 685. The plaintiff has no legal right, because he happens to be in possession of the duplicate, favorable to bis present contention, to claim that the defendant shall respond to him in damages, while the duplicate of such agreement, executed with the same formalities, in the hands of the defendant, shows that he cannot recover anything. The burden of proof rested upon the plaintiff to show that the contract in his possession was the true one. This he has failed to do, because the contract in the possession of the defendant must be deemed equally true and binding. The plaintiff, having failed, therefore, to establish his case by a preponderance of the evidence,— such evidence consisting wholly of writings for the construction of the court,—should have been nonsuited at the trial. Syms v. Vyse, 2 N. Y. St. Rep. 106.

It is true that evidence was permitted to be given upon the trial, by the plaintiff, designed to establish that the verbal agreement between the plaintiff and the defendant was for an employment for three years at the rate of $800 for the first year, and $1,000 per year for the two remaining years. But in an action at law, in a court having no general equity jurisdiction, and hence with no power to reform a contract, this evidence appears to ns to have been incompetent, under the well-established rule that all negotiations leading up to a written contract are deemed to be merged in the written instrument. The learned county judge permitted the jury to have recourse to the conversation and circumstances anteceding the making of the agreement. The relation of facts given by the plaintiff was diametrically denied by the principal officer of the defendant, with whom the negotiations were conducted, and whose testimony tended to show quite clearly that on account of the lack of experience of the plaintiff, and hence the uncertainty of his giving satisfaction to the company, the defendant’s agent would not enter into any arrangement beyond one year, at the outset, but would determine afterwards, and in view of the character of the services, whether he would retain the plaintiff in the employment of his company. These were the only two witnesses testifying upon that subject. Should this judgment be permitted to stand, it would be palpably in violation of a written contract executed by the plaintiff, and held by the defendant. We must hold, therefore, (the case having originated in a court where a reformation of the' contract was neither sought nor attainable,) that the plaintiff has failed to carry the burden imposed upon him by law, showing that his right to recover was based upon a preponderance of the evidence. The judgment and order appealed from should be reversed.

Judgment and order of the county court of Monroe county, appealed from, reversed, and a new trial granted, with costs to abide the event. All concur.  