
    David Allen and Mary E. Allen, Appellants, v. John S. Konrad, Respondent.
    
      Parol evidence is incompetent to va/ry a written contract, 6mt is competent to show that the minds of the pa/rties did not meet—conversion.
    
    Where the plaintiffs in an action for the conversion of ■ goods place in evidence an instrument signed by the defendant, which in terms creates a contract on his part to act as an agent of the plaintiffs in respect to the goods, parol evidence tending to show that one of the agents of the plaintiffs sold the goods to the defendant and that another of their agents delivered the goods and handed to the defendant the instrument, representing it to be a receipt for the goods, is admissible, Such testimony does not violate the rule that parol evidence is not admissible to vary the terms of a written contract; it tends to show that there was no contract between the parties, that the written instrument was signed-under a misapprehension, and that the minds of the parties did not meet thereon.
    Appeal by the plaintiffs, David Allen and another, from a judgment of the Municipal Court of the city of.Few York, borough of Brooklyn, in favor of the defendant, rendered upon the decision of the court,
    
      J. Wilson Bryant, for the appellants.
    
      David Hirschfield, for the respondent.
   Woodward, J.:

The plaintiffs are manufacturers of cigars. Their agent visited the defendant and sold him a bill of goods, amounting to forty-three dollars. Another agent of the plaintiffs delivered the goods and handed the defendant a paper which the agent said was a receipt for the goods, which defendant signed, and which now appears as plaintiffs’ exhibit in the case as a contract of agency on the part of the defendant. Thei plaintiffs insist that the defendant holds the goods as their agent; that he has refused to deliver them or to make payment for the same in the manner provided in the contract, and that defendant has converted the same. On the trial of the case the court below dismissed the. complaint upon the merits, and appeal comes to this court..

The plaintiffs rely, upon this appeal, on their objections and exceptions taken at the trial, based upon the idea that certain evidence was -incompetent and immaterial as tending to vary the terms of a written contract; but we are- of .opinion that the alleged contract was never entered into as an expression of the intention of the parties, but was signed by the. defendant under the impression that it was a mere receipt for the goods, and that the judgment in favor of the defendant was a proper disposition of the case.

While it will not be questioned that parol evidence may not be introduced to vary or control a written instrument, the authorities cited by the plaintiffs do not hold that the court may not be informed as to whether a contract was ever, in fact, made. The ■difficulty with the plaintiffs’ case is that there is no subsisting contract between the parties ; their minds never met in the execution ■of the writing in evidence, but the so-called contract was signed under a misapprehension as to the facts, it being represented to the defendant as a mere receipt for the goods, and not as a contract. The contract between the parties was made when the agent sold the goods; the terms of that contract were controlling, and there is no ■evidence in the case to support any other contract, or to show that the defendant ever made any other agreement than that entered into between the plaintiffs’ salesman and the defendant. The plaintiffs ■ought to be able to show a contract free from all trickery before they attempt to use the harsh remedy of an action for conversion, ■and we are of opinion that the ends of justice require the affirmance of this judgment.

The judgment should be affirmed, with costs.

All concurred.

Judgment of the Municipal Court affirmed, with costs.  