
    Van Gorden v. Sackett.
    
      (Supreme Court, General Term, Fourth Department.
    
    July 20, 1889.)
    Evidence—Pakol to Explain Whiting.
    In an action for the price of goods sold, in which defendant contended that all the goods had not been delivered, it appeared that plaintiff signed an agreement to deliver to defendant “about 200 bushels of buckwheat. ” Held, that it was competent to show, by paroi evidence, that plaintiff informed defendant’s agent, with whom
    
      the contract was made, that it was “partnership buckwheat, ” in which his share would be about 100 bushels; that the agent wrote the contract for 200 bushels, and told plaintiff that, if the quantity fell short, there would be no trouble about the pay for what was delivered,—as such evidence is not necessarily inconsistent with the writing, but relates to the time and manner of payment, as to which the contract was silent.
    Appeal from Schuyler county court.
    Action by George Van Gorden against Allen B. Sackett, to recover the value of 50.71 bushels of buckwheat sold and delivered to defendant on 8th November, 1886. It was shown that upon that day the buckwheat was delivered by plaintiff to and received by defendant, and that its value was 45 cents a bushel; that the plaintiff demanded pay, and defendant refused, claiming that plaintiff had sold him 200 bushels, and he would pay when the rest was delivered. The defendant put in evidence the following paper, signed by plaintiff: “ Watkins, N. Y., Nov. 4,1886. I agree to deliver to the Seneca Lake Steam-Mills, Watkins, N. Y., about 200 bushels of buckwheat, at 45 cents per bushel of 50 lbs., on or about the 15th of Nov., 1886; quality, dry and clean. Sold through Vernon C. Huey. Geo. Van Gorden. ” It appears that defendant was proprietor of Seneca Lake Steam-Mills, and was running them, in 1886, and that Huey was his agent to purchase buckwheat, and made the arrangement with plaintiff in pursuance of which plaintiff made the delivery. In testifying to the transaction with Huey, plaintiff said: “I told him I had about 100 bushels to sell. 1 told him it was partnership buckwheat. My share would be about 100 bushels. He wrote the contract for about 200 bushels. He said the other party could draw in theirs. I told him I didn’t think they would draw it. Hadn't seen them. I told him there might be a kick about paying for it. He said, < No,’ draw in what I had; to tell them that it fell short, and it would be all right, and I would get my money. This was before the contract was signed.” The plaintiff delivered all he had, except what he saved for his own use.
    Argued before Hardin, P. J„ and Merwin and Martin, JJ.
    
      O. P. Hurd, for appellant. W. L. Norton, for respondent.
   Merwin, J.

Assuming that the instrument of November 4,1886, was not defective by reason of its failure to designate the name of the buyer, except as it might be inferred from the designation “Seneca Lake Steam-Mills, ” and the name of the agent, Huey, and assuming that the quantity was sufficiently definite for enforcement, still it was not valid without a consideration to support it. In Justice v. Lang, 42 N. Y. 493, it was held that the use in such an instrument of the expression “cash upon.such delivery” implied a promise on the part of the party taking it to pay the price when the goods should be delivered, which promise furnished sufficient consideration for the agreement to deliver. In the same case it was afterwards held in the court of appeals (52 N. Y. 323) that it was a question of fact for the jury to determine whether or not there was a promise to receive and pay for the goods. The present case is not so strong for the buyer as the case cited; for here the words “cash upon delivery” are not in the .paper. There is nothing as to the time or manner of payment. So that if we should assume that the justice, in finding for the plaintiff, found in effect that there was no promise on the part of the defendant to accept and pay, and therefore no consideration for the instrument, it would be questionable whether we ought to disturb such conclusion.

But there is another view of the case. It was competent to show by paroi what the consideration was, and what obligation was, by the bargain, as in fact made, upon the defendant. Chapin v. Dobson, 78 N. Y. 74; Eighmie v. Taylor, 98 N. Y. 294; Juilliard v. Chaffee, 92 N. Y. 535; Benj. Sales, (2d Ed.,) § 232. In this view evidence was given from which the justice had the right to find, as a part of the bargain, that the plaintiff might draw what buckwheat he had, and he would have his pay, without reference to whether the party who owned the rest drew his share. This would not necessarily be inconsistent with the writing, but would relate to the time and manner of payment. If such was the bargain, the defendant, after receiving and keeping the plaintiff’s share, would not be in a position to assert the entirety of the contract, but would be bound to pay for what he received, and resort to his claim for damages, if the balance was not delivered. Ho damages are shown. The judgment should be affirmed.

Hardin, P. J., concurred.

Martin, J.

I concur upon the ground that there was no written contract between the parties, and lienee it was competent to show the agreement, under which the buckwheat in question was delivered, by paroi evidence.  