
    Orson Richards, Respondent, v. Brace Millard, Appellant.
    In an action wherein plaintiff claimed that defendant purchased certain real estate as agent for him, after the introduction in evidence of a deed of the premises from the original owner to defendant, a contract of purchase and sale between the parties, and a deed from defendant to plaintiff, plaintiff offered oral proof of defendant’s agency. This was objected to as tending to contradict the writings. The objection was overruled. Held, no error, as the legal effect of the instruments was not varied by the proof, but it only related to the accountability of defendant.
    Plaintiff alleged in his complaint that, prior to the transaction in question, defendant had, on various occasions, been employed by him as agent in purchasing lands at a stipulated compensation for his services. This was admitted in the answer. Upon the trial, plaintiff offered evidence of these facts, which was received under objection. Held, that this was no error for which the judgment could be reversed. 1st. Because defendant could not have been prejudiced by proof of facts which were admitted; 2d. The evidence was admissible for the purpose of aiding in the interpretation of the acts and communications between the parties in reference to the transaction in question.
    But no general agency, such as would have precluded defendant from purchasing the lands in question on his own account, being claimed; held, that this evidence was not competent for the purpose of establishing the relation of principal and agent in respect to such lands, and (the testimony of the parties conflicting upon this point), therefore, that a charge to the jury that they had a right to look into the pre-existing relations as bearing upon the probabilities, as to which of the parties testified to the truth, was error.
    (Argued April 30, 1874;
    decided May 26, 1874.)
    Facts accompanying one transaction may sometimes be adduced in evidence upon the question of intent, in a cotemporaneous transaction presenting the same facts; but evidence of the facts in one transaction does not tend to establish the existence of similar facts in another, and is incompetent for that purpose.
    Appeal from judgment of the General Term of the Supreme Court in the third judicial department, affirming a judgment in favor of plaintiff entered upon a verdict.
    This action was brought to recover money alleged to have been fraudulently obtained by the defendant from plaintiff, for the pretended purpose of paying for lands purchased by defendant, as agent for plaintiff.
    The plaintiff’s complaint alleged, in substance, that plaintiff employed defendant as his agent to purchase for him, of one Calvin Cooley, 6,961 acres of land, upon the best terms possible; that defendant, as such agent, negotiated with Cooley and made a contract to purchase the land for $15,000 ; that he thereupon falsely and fraudulently represented to plaintiff that he had agreed to pay Cooley for said land the sum of $30,000, and thereby induced plaintiff to pay him, the defendant, for Cooley, such latter sum, only $15,000 of which he paid to Cooley, and kept and converted the remaining sum of $15,000 to his own use. The defence is, that, in respect to this purchase of Cooley, defendant was not the agent of plaintiff, but bought the land on his own account and sold it to plaintiff for the sum of $30,000.
    Upon the trial a written contract, executed by Cooley, for the sale of the land for $15,000 to defendant, a deed from Cooley to defendant, a written contract on the part of plaintiff to purchase of defendant for $30,000, which concluded with this clause, “ $100 paid on signing this agreement,” and a deed, from defendant' to plaintiff, were given in evidence. Plaintiff testified as to the employment, by him, of defendant to purchase the lands in question ; that defendant stated Cooley would not sell for less than $30,000, and that defendant represented that he could deal with Cooley more favorably if he dealt in his own name, and for this, reason he consented to the mode of transfer; that he gave the contract of purchase because defendant stated that he did not wish to take the land unless plaintiff would agree to take it. This evidence was objected to, and defendant moved for a nonsuit, at the close of the evidence, upon the ground that the plaintiff was bound by the writings, which showed a purchase and sale, not an agency, and that the same could not be varied or modified by parol evidence. The objections were overruled and motion denied.
    Plaintiff also testified, under objection, to the employment of defendant to make various other purchases for him, at a stipulated compensation of $100 per lot. Various letters, from defendant to plaintiff, in reference to this and other purchases, were also offered and received in evidence. Among others, the following:
    “ Albany, Jwie 14¡5A, 1866.
    “ Orson Richards, Esq., Sandy Hill:
    
      “Dear 8w\ — I have this day contracted to purchase, of Calvin Cooley, his 6,961 acres, undivided, in township Ho. 33 of Totten & Crossfield’s purchase, Hamilton county, for which I will get you his quitclaim deed, signed also by his wife, on the payment of $30,000, as follows, according to the two following propositions, viz.: $7,500 cash in hand, and the balance, $22,500, secured by bond and mortgage, in three equal annual payments, with interest. Or, if you will pay $28,000 cash down, I will get his deed for you. How, there are other parties, who have been to see Mr. Cooley lately, and are negotiating to purchase said land; hence, what is done must be done at once. You will please let me know at once whether you accept of this proposition, and which one, if either. If you do not make the purchase other parties will do so.
    “ I will here state, I called this day on James Dexter, Mr. White’s agent, to see if Mr. White had concluded to sell the south-east quarter, 6,000 acres, of township No. 32 of Tot-ten & Crossfield’s purchase. Mr. Dexter informed me that it was not for sale, and tliat Mr. W. had had many offers, but hoped to get eight or ten dollars per acre for it.
    “Very respectfully,
    “BRACE MILLARD.”
    Defendant, as a witness, denied that there had been any conversation or communication between him and plaintiff, in reference to the land in question, until after he had procured the contract of Cooley, when he wrote the foregoing letter; that, after that letter, plaintiff called upon him and he contracted to sell him the land, that he required a payment down and plaintiff paid him $100. He denied any agency in the matter, and denied that he told defendant that he had agreed to pay Cooley $30,000 for the land.
    The court, among other things, charged the jury: “You have a right to look at the pre-existing relation between the parties as bearing upon the probabilities as to which one of these parties has truthfully related to you the agreement existing between them concerning the purchase and conveyance of this property.” To which defendant’s counsel duly excepted.
    Further facts appear in the opinion.
    
      Henry Smith for the appellant.
    Proof that defendant had acted as plaintiff’s agent in the purchase of lands on other occasions was inadmissible. (Ross v. Ackerman, 46 N. Y., 210; Jackson v. Smith, 7 Cow., 717, 719; Brinckerhoff v. Foote, Hoff. Ch., 291; Strong v. Place, 4. Rob., 393; Cary v. Hotaling, 1 Hill, 311; Hall v. Naylor, 18 N. Y., 588 ; French v. White, 5 Duer, 254; Murphy v. Brace, 23 Barb., 561, 563, 564; Kline v. Baker, 106 Mass., 66; Van Kleek v. Le Roy, 4 Abb. [N. S.], 435; Allen v. Addington, 7 Wend., 9; Richardson v. Brackett, 101 Mass., 505; Lynde v. McGregor, 13 Al, 178; Sommes v. Skinner, 16 Mass., 360; Jacobs v. Duke, 1 E. D. S., 271; Perry v. Gray, 106 Mass., 206; Atwood v. Scott, 99 id., 117; Hilton v. Scar-borough, 5 Gray, 422; Hollingham v. Head, 4 C. B. [N. S.], 388; 93 E. C. L. R.; Wilmot v. Richardson, 6 Duer, 328, 339; Murray v. Smith, 1 id., 430, 432; First Baptist, etc., v. Brooklyn, etc., 23 How., 448, 450; 28 N. Y., 158; Blossom v. Griffin, 13 id., 574.) Parol evidence was inadmissible to vary or contradict the writings between the parties. (Bonesteel v. Flack, 27 How., 310, 41 Barb., 439; Norton v. Coons, 6 N. Y., 33; Durgin, v. Ireland, 14 id., 323; Thomas v. Truscott, 53 Barb., 200; Hooper v. Taylor, 4 E. D. S., 486; Mott v. Ritchmyer, Com. Apps., Jan. 8, 1874.) A witness cannot be contradicted on an immaterial issue. (Plato v. Reynolds, 27 N. Y., 586; Carpenter v. Ward, 30 id., 243, 245, 249; Baptist, etc., v. Brooklyn, etc., 23 How., 449; Crounse v. Fitch, 14 Abb., 352, 353; Union Bk. v. Mott, 39 Barb., 185.) An issue cannot be raised upon an answer put to affect the credibility of a witness. (Trustees, etc., v. Brooklyn, etc., 28 N. Y., 153; Tennant v. Hamilton, MacL. & R., 821.)
    
      U. G. Paris for the respondent.
   Rapallo, J.

There was evidence, on the part of the plaintiff, free from objection, amply sufficient to require the submission to the jury of the question, whether the defendant, in making the purchase from Cooley, was acting as the ■agent of the plaintiff, or gave the plaintiff so to understand. The motion for a nonsuit was, therefore, properly denied. The verdict establishes that the jury found in favor of the plaintiff on this issue, and the only questions now before us are, whether the court erred in the admission of evidence which may have influenced the finding of the jury, or in the® instructions given them as to the effect of the evidence.

The objection, that oral proof of the agency was inadmissible, as contradictory of the writings executed between the plaintiff and defendant, is not tenable. These writings, it is true, purported to establish a sale from the defendant to the plaintiff. But they did not preclude the plaintiff from showing that the purchase by the defendant from Cooley was, in fact, for the account of the plaintiff, and that, as a mode of consummating the transaction, the defendant took .the title from Cooley and transferred it to the plaintiff. The legal effect of the instruments themselves, as between the parties thereto, was not varied by this proof. The proof related only to the accountability of the agent to his principal in respect to the price paid for a purchase made by the agent, formally, in his own name, but, in fact, for the benefit of the principal, and by the agent transferred to the principal. If, on such a transfer, the agent,, by fraudulently misrepresenting or suppressing the sum actually paid for the property, succeeded in obtaining a larger sum from his principal, the latter was not concluded by the form of the papers from showing the fraud when discovered.

The exceptions principally relied upon on the argument are those which were taken to the admission of evidence that prior to the transaction in question the defendant had, on various occasions, been employed by the plaintiff, as his agent, to make purchases of lands, and that the defendant had acted as such agent, and received compensation for his services.

The admission of this evidence was not, as we think, error, for which the judgment should be reversed. In the first place, this prior employment and agency were alleged in the complaint, and expressly admitted in the answer. It is difficult to perceive how the defendant could be prejudiced by proof of facts which were admitted upon the record. In the next place, the evidence was, we think, admissible, for the purpose of aiding in the interpretation of the communications, written and oral, between the plaintiff and defendant. For instance, in construing the letter of June 14, 1866, from the defendant to the plaintiff, in which the defendant states, in respect to the purchase in question: “ I have this day contracted to purchase of Calvin Cooley his 6,961 acres, etc., for which I will get you his quitclaim deed, signed also by his wife, 'in the payment of $30,000,” etc. The fact that the defendant was in the habit of acting as agent for the plaintiff for the purchase of similar lands, for a stipulated compensation, was a circumstance which might legitimately be considered in determining whether, from this communication, the plaintiff had not the right to understand, and whether the defendant did not intend that the plaintiff should understand, that the contract with Cooley had been made by the defendant in his capacity of agent for the plaintiff. Such a communication, coming from a stranger, might bear a very ■different interpretation from that of which it was susceptible when made by one who had habitually acted as agent for the person to whom it was addressed, and the rate of whose compensation for his services in such matters had been fixed by agreement; especially in view of the further fact testified to by the defendant, that his contract with Cooley was so drawn as to bind Cooley but not the defendant, and that he had thus -secured the option of making the purchase. In like manner, the relation existing between the parties had a bearing upon ■the interpretation of the conversations between the plaintiff and defendant, as testified to by the former, in which, as the plaintiff states, he told defendant that he thought he (defendant) could do better with Cooley than he (plaintiff) could, and named to defendant the highest price he (plaintiff) would be willing to pay for the land. It is true the defendant denies these conversations, but, nevertheless, the plaintiff had the right to lay the evidence of them before the jury, together with all facts tending to throw light upon their meaning. The question of the veracity of the respective parties was for the jury.

So of the evidence in regard to the rate of compensation established between the parties. This not only tended to make more clear the nature and terms of the agency, but to explain some of the expressions which, as plaintiff testifies, were used at the time of closing the transaction now in controversy. The plaintiff testifies, in substance, that when -he first made.arrangements with defendant to make purchases of land for Mm, the defendant said the trouble was the same on a small parcel as a large one, and agreed to do the business for $100 per lot, and that the plaintiff had paid him at that rate for making purchases.

This statement is contradicted by the testimony of the defendant. He testifies, in substance, that the plaintiff paid him ten cents per acre for purchasing land; that he charged according to the assessed acres; that the lots were called 1.000 acre lots; that there was an understanding between him and plaintiff that when the lot contained a fraction over 1.000 acres he did not charge for the fraction, and that when it fell short he charged for the 1,000 acres, and that the gross amount of commissions received by him from plaintiff was about $3,500.

Assuming the plaintiff’s version to be- true, and that the stipulated commission was $100 per lot, without regard to its size, this fact would have an important bearing upon the effect to be given to the conversation at Mr. Hammond’s office, when the plaintiff signed the contract to take the land at $30,000. The plaintiff testifies that defendant then suggested that there should be some consideration to make the contract binding; that he (plaintiff) replied: “If you want your fee I will give it you; ” that Mr. Hammond then drew a cheek for $100, which plaintiff signed, and gave to defendant. This conversation would be quite unintelligible but for the evidence of the previous dealings and relations between the parties, and the stipulated rate of compensation; but in view of these facts, the story, if true, tends strongly to show that the defendant assumed to be acting in the matter as agent for the plaintiff, and accepted from him the usual compensation for his service. This directly conflicted with the defendant’s claim that he made the purchase on his own account, and was entitled to and did resell the property to the plaintiff at a profit of $15,000.

We think that the evidence of the previous dealings between the parties, and of the stipulated rate of compensation, was properly admitted for the purpose of explaining their acts and communications with each other in reference to the transaction now in controversy. It is true that when the testimony was admitted, the facts which render it relevant had not fully appeared. But, inasmuch as evidence of them was afterward introduced, the question became one simply of the order of proof.

The more serious question in the case is that which arises upon the charge of the judge in regard to the effect of this evidence. It is conceded, and the court so charged, that the evidence failed to show such a general agendy, on the part of the defendant, as to preclude him from purchasing the land in question on his own account, in the absence of proof of a special agency in respect to the purchase of this land. The plaintiff was, therefore, bound to show, by competent evidence, that he had employed the defendant, as his agent, to purchase tins particular land, or that the defendant pretended to the plaintiff to have made the purchase for his account, and by this means obtained from the plaintiff a profit on the purchase. In the absence of proof to this effect, the fact that the defendant had, on numerous prior occasions, acted as the agent of the plaintiff in the purchase of land would not have been in and of itself competent for the purpose of establishing the relation of principal and agent in respect to the particular purchase in question. To give that effect to the prior transactions between the parties would result in subjecting the defendant to the liability of accounting to the plaintiff for every purchase of land which the defendant might make. This was not the nature of the arrangement between them. The court charged, and correctly, that the jury must be satisfied that the relation of principal and agent existed between the parties, with respect to the particular transaction in controversy. The testimony bearing upon this question was conflicting. The parties to the action both appeared as witnesses, and contradicted each other. Other witnesses also gave conflicting evidence. The court charged the jury as follows: “You have a right to look at the preexisting, relation between the parties, as bearing upon the probabilities, as to which one of these parties has truthfully related to you the agreement existing between them concerning the conveyance and purchase of this property.” This portion of the charge was excepted to, and we think the exception was well taken. We have already expressed the opinion that the evidence, as to the pre-existing relations between the parties was relevant, for the purpose of interpreting their acts and communications as the jury should find them to have taken place. But the existence of these relations did not tend to prove which party told the truth in respect to the particular transaction, or whether or not such statements as were testified to on the one side and controverted by the other, were or were not in fact made. Evidence of the relations existing between the parties was, for instance, admissible, for the purpose of showing what idea the letter of June fourteenth was calculated, and intended by the writer, to produce, and did produce, upon the mind of the plaintiff. But, on the other hand, the defendant testified to subsequent oral communications with the plaintiff prior to the consummation of the transaction, which, if defendant’s- testimony were true, should have dispelled any erroneous impression the letter was calculated to produce, and disclosed to the plaintiff the attitude of the defendant, as a principal, dealing for his own advantage, and making his own price for property which he proposed to sell to the plaintiff. The fact that the defendant had, on other occasions, acted as special agent for the plaintiff in the purchase of lands, did not, legitimately, tend to discredit the statement of the defendant that, on this occasion, he avowed himself to be acting in his own interest and on his own account, or to confirm the statement of the plaintiff, that he had employed the defendant to make this specific purchase. It was for the jury to determine from the testimony of the witnesses and the credibility to which', in their judgment, these witnesses were respectively entitled, what was actually said and done between the parties, with reference to the particular transaction in question. Evidence that in former purchases of land the defendant had acted as agent for the plaintiff did not, legitimately, tend to solve the disputed question, which of the parties told the truth in respect to the particular transaction under investigation. The authorities cited by the learned counsel for the respondent do not establish that the facts accompanying one transaction may be adduced as evidence that similar facts existed in another, but only that where the facts are the same in several cotemporaneons transactions, the intent may be gathered from the coincidence of these facts with the intent alleged. These are generally cases of false representations, purchasing goods with intent not to pay for them, passing counterfeit money, etc. Other cotemporaneous acts of a similar character have been permitted to he shown on the question of intent or scienter, but in none of these eases was it permitted to be shown that the party made false representations in one case, for the purpose of establishing that he made like representations in another, or that it was probable that he did. If or can the fact of previous offences be considered as bearing upon the probability of the accused having committed the offence charged.

It may be that the verdict would have been the same had the instruction, which we deem erroneous, not been given. But this consideration is not sufficient to justify us in affirming the judgment. In a case where the evidence was so conflicting as in this, we have no right to assume that the instruction excepted to had no weight in bringing the jury to a conclusion.

On this exception we deem it necessary to reverse the judgment and order a new trial, with costs to abide the event.

All concur.

Judgment reversed.  