
    Milo D. Smith, App’lt, v. James Halligan, Resp’t.
    
      (Supreme Court, General Term, Fifth, Department,
    
    
      Filed June 23, 1888.)
    
    Evidence—Written contract op sale—Admissibility op paroi evidence.
    When the contract of sale in writing fails to specify the time and place of performance it is competent to prove from conversations had after the making of the contract when and where it was to be performed.
    
      Appeal from a judgment entered upon a verdict in the plaintiff's favor "and from an order denying the plaintiff’s motion for a new trial made upon the judge’s minutes.
    ■ The action was to recover damages for the. non-perform-once of a written contract, of which the following is a copy:
    
      “November 20, 1882.
    “M. D. Smith bought of James Halligan, Junior, two cars of potatoes at fifty-four cents for sixty-two pounds, to be loaded on the track at North Java, or Java Center. Paid cash twenty dollars.
    (Signed) “JAMBS HALLIGAN, Junior.”
    The defendant made no delivery of potatoes. The plaintiff recovered a verdict for twenty-six dollars and five cents, being for the moneys advanced and the interest thereon.
    
      I Samuel Johnson, for app’lt; M. E. and E. M. Bartlett, for resp’t.
   Barker, P. J.

On a former trial of this action, the defendant was permitted to testify against the objection and exception of the plaintiff, that in a conversation which preceded the signing of the writing, the plaintiff promised to secure the cars, and that no time was specified when the potatoes were to be delivered.

Upon appeal to this court from an order of the special term, granting a new trial, it was held that the writing was more than a receipt and contained the elements of a contract, and for that reason its terms and provisions could not be contradicted or changed by paroi testimony as to stipulations and arrangements made prior to the execution of the contract, and that as no time was specified in the agreement within which the potatoes were to be delivered the law implies that it was to be done within a reasonable time.

The order granting a new trial was sustained, because this rule of evidence was not observed upon the trial. 9 N. Y. State Rep., 425.

The appellant claims that the same error occurred upon the trial now under review. In this we think he is clearly mistaken.

The plaintiff gave evidence in his own behalf of interviews and conversations which he had with the defendant after making the agreement relative to the time and place at which the potatoes were to be delivered, and also as to other matters tending to show a breach of the contract on the part of the defendant.

After the plaintiff rested, the defendant was called and sworn as a witness in his own behalf. The plaintiff contends that he was permitted to give evidence over his objection as to conversations had with the plaintiff prior to the execution of the agreement, to which he .took an exception.

As we read the case, we think it quite clear that his evidence was confined to conversations and arrangements, made after the execution of the contract, relative to the delivery of the potatoes.

As no specific time was agreed upon for the delivery of the property purchased, it was entirely competent to prove by paroi evidence that after the making of the agreement the parties made arrangements as to the time when and the place where the potatoes should be delivered. The court instructed the jury that the defendant was guilty of a breach of his contract in view of the undisputed evidence in the case, and that the plaintiff was entitled to recover as matter of law the moneys advanced upon the contract, with interest thereon and such damages as he had sustained by reason of the non-delivery of the potatoes. The plaintiff’s evidence tended to show that the price had advanced in the market, and the defendant’s evidence was to the effect that it had not.

The jury have decided that question against the plaintiff.

The judgment should be affirmed.

Haight, Bradley and Dwight, JJ., concur.  