
    The Emerald & Phoenix Brewing Co., Appellant, v. Michael Leonard, Respondent.
    (Supreme Court, Appellate Term,
    December, 1897.)
    1. Bailment for an indefinite term — Termination — notice to bailor.
    A bailment for storage, for an indefinite time, is terminable at the will of either party; and where the bailee notifies the bailor that he refuses to continue longer as. bailee and gives the bailor an opportunity to obtain the subject of the bailment, the'bailee is released. •
    
      2. Same — Waiver of tort in selling the thing stored.
    Where the bailor brings an action- against the bailee as for goods sold and delivered, he waives the alleged tortious act of the bailee in» selling to another the subject of the bailment, and cannot maintain therefor an action for a conversion.
    3. Evidence — Parol, tó show that a bill of sale did not include the thing stored.
    The rule that parol evidence is inadmissible to contradict or vary a written contract applies only to controversies between the immediate parties to the instrument, and does not preclude a bailee from showing, as against the bailor, that a bill of sale, by which he .sold to. a third party . his business at the place of the bailment, “ together with all the goods, chattels,, stock in trade,” etc., did not include the property which he held as bailee.
    
      4. Same — Ambiguity.
    Where the description of property, as contained in a written instrument, is ambiguous, parol evidence is admissible to ascertain the nature and quality of the subject-matter to which the instrument refers.
    Appeal by plaintiff from judgment of the Eighth District Court in favor of defendant.
    Isaac N. Miller, for appellant.
    James F. Higgins, for respondent.
   McAdam, J.

On March 12, 1895, the plaintiff placed on storage in th¿ cellar of defendant’s liquor store, No. 2641 Eighth avenue, ten casks of old stock ale, on the understanding that the defendant might, if he desired, use the ale in his business upon paying $17 net, as each cask was used. The defendant, under this arrangement, used two casks of the ale, which he paid for on November 29, 1895, when he sold the business to John McOabe.

The defendant testified that he did not sell the eight casks of stock ale in the cellar; that he told his vendee the ale belonged to the plaintiff, and was there on storage only; and that his vendee agl-eed to arrange with the plaintiff concern&g it*. He further testified that when he sold the place, he went to the plaintiff, and after paying for the two casks which he had used, notified the plaintiff. of the sale, and that the plaintiff must either take the old ale out of the cellar or make arrangements with McOabe concerning it. There can be no doubt that this notice was given, for the plaintiff’s salesman, Mr. Theiss, testified that when the defendant settled for the two. casks of ale, “ he said he had sold, out to McOabe, that for us to take out the stock ale or collect from McOabe.”

The storage was not for any definite time, and was, therefore, terminable at the will of either party. In such case, “ the bailment may be terminated by the act of the bailee. He may refuse to continue the relation longer, when, after notifying .the bailor to that effect and giving him an opportunity of getting the thing back,, he will stand released.” Lawson’s R. & R., § 1712; Roulston v. McClelland, 2 E. D. Smith, 60; Dale v. Brinckerhoff, 7 Daly, 45. The bailment was, therefore, effectually terminated by the notice given.

The plaintiff bases its right to recover upon the ground that the. defendant made a sale of the eight casks .of ale to McCabe, and by the exercise of this dominion converted the same to his own use; but it waived the alleged tort and sued upon-contract as for goods sold and delivered. See Terry v. Munger, 121 N. Y. 161; 26 Am. & Eng. Ency. of L. 792; 3 Wait’s Act. & Def. 529; 4 id. 475; 6 id. 214; 7 id. 484; Moak’s Underhill on Torts, 607; McGoldrick v. Willits, 52 N. Y. 612; Abbott v. Blossom, 66 Barb. 353. The plaintiff’s contention fails, however, in view of the finding that the defendant did not sell the ale to McCabe.

The plaintiff goes a step further, and insists that the' defendant allowed McCabe to assume control of the- property, and that McCabe’s refusal to give 'it up to the plaintiff is equivalent to a denial by the defendant of the plaintiff’s right to possession. As the finding of the justice proceeds on the ground that the ale was never in McCabe’s possession, except as a temporary caretaker, upon the understanding that the property belonged to the plaintiff, and that he must arrange .with it if he desired to use the ale,- this claim also fails, in view of the fact that the defendant terminated his relation to the plaintiff as bailee by giving the bailor due notice. •

The defendant at all times disclaimed any ownership or right of dominion over,the aj.e, and seems to have conceded all through that the plaintiff was entitled to the property and ought to take it away from the store. It is difficult, therefore, to discover any legal ground upon which he can be held for McCabe’s refusal to surrender the property to the plaintiff.

The plaintiff to establish his cause of action offered in evidence ■ the bill of sale from the defendant to McCabe, transferring “ the good will of the business carried on, * * * in premises LTo. 2641 Eighth avenue,' in the city of Hew York, together with all the goods, chattels, stock in- trade,” etc. Under objection and exception by the plaintiff, the defendant was permitted t-o testify that at the time of the sale he told McCabe that the ale did not belong to him, but to the plaintiff, and that McCabe said he would make arrangements with the plaintiff concerning it. This ruling is assigned as error.

The evidence was clearly admissible. In Lee v. Adsit, 37 N. Y. 78, it is said that “ the rule that parol extrinsic evidence shall not be received to contradict or vary a contract which is in writing, ap^ plies only in controversies between the parties, promisor and promisee, in such contract,” and that “ the writing is not conclusive as between one oí the contracting parties and a third person.” And in McMaster v. Insurance Co. of North America, 55 N. Y. 222, it was held that The rule that parol testimony may not be given to contradict a written contract, is applied only in suits between the parties to it or their privies. * * * It does not apply to third persons, who are not precluded from proving the truth, however contradictory to the written statements of others. Strangers to the instrument, not having come into this agreement, are not bound by it, and may show that it does not disclose the very truth of the matter. And as, in a contention between a party to an instrument and a stranger to it, the stranger may give testimony by parol differing from the contents of the instrument, so- the party to it is not to be at a disadvantage with his opponent, and he, too,in such case, may give the same kind of testimony.” See, also, Lowell Co. v. Safeguard F. Ins. Co., 88 N. Y. 591; Juilliard v. Chaffee, 92 id. 529, 534; Hankinson v. Van Tine, 152 id. 20, 31; Barreda v. Silsbee, 21 How. (U. S.) 146, 170; Greenleaf on Ev., § 279.

Another rule under which the evidence might perhaps have been admitted is that where the description is ambiguous, it may be made intelligible by evidence aliunde, for parol evidence is always admissible to ascertain the nature and qualities of the subject-matter to which the instrument refers. Doe v. Bart, 1 T. R. 704; Cary v. Thompson, 1 Daly, 35; Thomas v. Truscott, 53 Barb, at p. 204.

The instrument not being between the parties to the record, the facts of the transaction were open to the fullest investigation, and on the finding of the justice showed that there was no cause of action against the defendant.

The judgment resolves all controverted questions of fact in favor of the defendant, and the weight of evidence will not be reviewed except in a case of clear injustice. Hardegg v. Williards, 12 Misc. Rep. 17; Huller v. Wynne, 16 id. 580; Burnham, v. Butler, 31 N. Y. 480; Halsey v. Hart, 85 Hun, 46.

The judgment is sufficiently sustained by the evidence, and must be affirmed, with costs.

Dauy, P. J., and Bischoff, J., concur.

Judgment affirmed, with costs.  