
    Halsey Fitch et al., Resp’ts, v. Alexander A. Kennard et al., App’lts.
    
    
      (New York Common Pleas, General Term,
    
    
      Filed December 5, 1892.)
    
    1. Sale—Contract.
    In an action for damages from breach of. an alleged contract by defendants to ship a car of eggs in Chicago, on a certain night, to plaintiffs in New York, the broker testified that defendants represented that the eggs would be shipped that evening, “ whether we bought or not,” and that he consummated the sale with plaintiffs the next day “with the understanding that the car was then in transit,” and plaintiffs testified that it was upon the faith of such assurance that they bought the eggs. Held, that the representation so relied and acted upon constituted an agreement for infraction of which defendants were responsible in damages.
    2. Same—Evidence.
    The contract of . sale and purchase was negotiated by a firm of brokers, through D., an employee. Upon the trial defendant K. and other witnesses were asked to give the conversati m at the time of the contract of sale between defendants and D., and the evidence was rejected upon the ground that D. was the agent of defendants, and that so they were concluded by his testimony. Held, error, that even if D. was the broker of defendants they had a right to contradict his version of the transaction.
    Appeal from judgment of the general term of the city court, affirming a judgment on a verdict.
    
      Abraham, Gruber, for app’lts; J. George Hammer, for resp’ts.
    
      
       Reversing 46 St. Rep., 271.
    
   Pryor, J.

The action is for damages from breach of an alleged contract by defendants to ship a cargo of eggs in Chicago, on the night of the 18th of March, 1891, to the plaintiffs i.n Hew York. The shipment was not made till the 19th of March.

The single question in controversy is: Did the defendants agree to ship the eggs on the night of the 18th of March ?

By the plaintiffs’ own evidence it appears that the broker negotiated the sale on the 18th of March, and consummated it on the 19th. Indeed, it is not apparent how the sale could have been made on the 18th, seeing that it was not until the 19th that the plaintiffs gave the broker authority to accept the defendants’ offer, i. e., to buy; and that it was not until the 19th that he communicated his authority to the defendants, the sellers. The “ purchase ticket,” i. e., the contract of sale, executed by the. broker and given to the defendants, was not so executed and delivered until the 19th. Assuming, then, an agreement to ship on the 18th, that agreement was necessarily provisional, and dependent on the consummation of the sale: and since the sale was not, in fact, consummated till the 19th, without more, there could have been no binding agreement to ship on the 18th. Suppose that after the negotiation on the 18th, and the then agreement to ship that night, the sale had gone off; would the plaintiffs have had a claim of damages against the defendants for failure to ship on the 18th ? After the miscarriage of the sale, plaintiffs could have had no right to the possession of the eggs, and defendants could have been under no obligation to ship on the 18th or at any other time. Whatever “ understanding,” therefore, may have existed between the parties to ship on the-18th, was necessarily cancelled by the failure to consummate the sale until the 19th.

But upon all the evidence the case presents another aspect, and warrants a different conclusion.

The broker testifies, in behalf of the plaintiffs, that the defendants represented that the eggs would be shipped that evening (the 18th), “ whether we bought or not; ” and that he consummated the sale on the 19th “ with the understanding that the car was then in transit.” The case then, is this: pending defendants’ offer to the intending buyers, they represented that the eggs were then in car, and would be shipped that evening (the 18th March),' so as to be delivered in New York “in due time; ” and upon the faith of that assurance the plaintiffs bought and paid for the eggs. We are of opinion that the representation so relied and acted on constitutes an agreement for infraction of which the defendants are responsible in damages to the plaintiffs. Hawkins v. Pemberton, 51 N. Y., 198.

But, appellants impeach the judgment for error as well in the exclusion as in the admission of evidence.

The contract of sale and purchase was negotiated by Davis & Company, of whom one Dodd was an employee, and who, in fact, made the contract. The issue in the case, we repeat, was whether the defendants agreed to ship the eggs on the 18th, and surely under their denial they were at liberty to controvert the evidence of the plaintiffs and disprove the alleged agreement. Nevertheless, when the defendant Kennard and other witnesses were asked to give the conversation at the time of the contract of sale between defendants and Dodd, the evidence was rejected, and upon the ground that Dodd was the agent of the defendants, and that so they were concluded by his testimony. It is our opinion that, on the undisputed evidence, Dodd was the broker of the plaintiffs and that the defendants negotiated with him for themselves ; "but assume otherwise, and still it is clear to demonstration that defendants had a right to contradict Dodd’s version of the transaction. If the broker of the defendants, they were not bound by his testimony ; nay, not even had he appeared as their witness. The law is not so unjust as to sacrifice a principal to the perjury of his agent, when the principal has in his hands the means of exposing the perjury. It will not avail on an appeal, as thought the general term of the court below, to argue that the Questions were too general, or that the offer was to show an inconsistent statement by Dodd without affording him a previous opportunity of. explanation.

The exclusion of the evidence in the trial court went upon the sole and specific ground that Dodd was defendants’ agent to sell; and upon that ground the evidence must stand or fall in this appellate tribunal, unless the evidence was in no aspect of the case competent, or could not be made so. Briggs v. Wheeler, 16 Hun, 583 (directly in point), and Tooley v. Bacon, 70 N. Y., 34, 37. We may add, that the questions could not have been made more definite without leading the witnesses ; and that were the objection proper the ruling could not be sustained upon the authority of Stacy v. Graham, 14 N. Y., 492, an adjudication in no respect applicable to the point in discussion.

Respondents answer that the contract of sale was in writing, and so was not open to paroi contradiction. The “purchase-ticket ” did probably constitute a contract of sale, but it was not produced or proved in evidence. The telegram of Davis only communicated the offer of defendants to sell a car-load of eggs, accompanied with the statement of Davis that they “ leave tonight.” The bill of lading acknowledged the receipt of the eggs and expressed the terms upon which they were to be carried, but contained no agreement of sale between the sellers and the buyers. We fail to find in the record any written contract of sale.

We incline to the opinion that the court below erred also in the admission of evidence ; but we forbear discussion of other exceptions, since the one sustained requires a reversal of the judgment.

Judgment reversed, and a new trial ordered, costs to abide the event.

Daly, Ch. J., and Bischoff, J., concur.  