
    Thomas Maddock, Resp’t, v. Henry A. Root, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed October 13, 1893.)
    
    1. Evidence—Letter written by clerk.
    Where it is made to appear that defendant’s clerk was accustomed to write letters by his direction, a letter written by him while in defendant’s employ is properly received in evidence, although the clerk had no recollection of special direction to write the letter, it having also been made to appear that defendant had recognized the letter by a subsequent one in Ms own handwriting.
    
      2. COBFOBATIONS—PbOOF OF INCOBFOBATIOK.
    The fact of incorporation, when material and not merely collateral, cannot be proved by parol testimony.
    Appeal from a judgment entered upon a verdict of a jury, and from an order denying a motion for a new trial.
    
      Hatch & Wickes, for app’lt; Albert H. Atterbury, for resp’t.
   Parker, J.

The judgment under review awards to the plain 1 tiff the value of ozone generators which it is alleged he manufactured at the special instance and request of defendant, and delivered, by his direction, to the United States Ozone Company. Defendant does not dispute that plaintiff manufactured the goods and delivered them to the ozone company, or that they were not in number or of the value averred in the complaint, but he did deny, both by his pleading and his deposition read on the trial, that the goods were purchased by him individually ; his contention being that he was an officer of the United States Ozone Company, and in that capacity, as the plaintiff well knew, ordered the generators of the plaintiff. While he denied making any promise whatever to personally pay for the goods, he insisted that the promise which the testimony on the part of the plaintiff tended to prove was a promise to answer for the debt of a third party, not in writing and subscribed by him, and therefore void because in contravention of the statute of frauds. But the evidence was not of such a character as to have warranted the court in dismissing the complaint at the close of plaintiff’s case, or after the testimony was all in, on either ground. Defendant’s denial of a promise to pay plaintiff was contradicted by the plaintiff -and his son ; therefore, as to it, a question of fact was presented. Nor could it properly have been determined, as a matter of law, that the promise alleged to have been made was in violation of the statute. There were circumstances tending to show that the plaintiff regarded the United States Ozone Company as the principal debtor: (1) The account was kept in the name of the ozone company on plaintiff’s books. (2) Bills were rendered to the ozone company at their place of business, where the goods were also delivered. (3) No bill or account was ever presented to Root in which he was named as the debtor. On the other hand, plaintiff testified that when he first began to manufacture the generators he did so upon the written guaranty of one Covington, who paid the bills for a time, and then withdrew his guaranty. Plaintiff having refused to furnish any more goods, he was subsequently taken, by a person who was styled the president of the United States Ozone Company, to the defendant, and there such conversation was had, if plaintiff’s version of it be true, as created an agreement by which defendant became bound to pay for generators to be delivered by the plaintiff to the company. This testimony has some measure of support in letters subsequently written by Root to the plaintiff, and also from the fact that the payments thereafter made were by means of Root's individual checks. As to the circumstance of keeping the account in the name of the company instead of Root’s, it is urged, by way of explanation, that plaintiff kept the account in the name of the company when relying for payment upon the written guaranty of Covington, and the form of keeping the account was not changed after the agreement with Eoot, as the goods were to be delivered to the same party and place as before. There seems to be no explanation of plaintiff’s having rendered his bills to the company, other than Eoot directed him to deliver the goods to it, and have made out and sent bills to correspond. The reason assigned for not sending the bills to the defendant in which he was personally charged as the debtor, is that there was never any dispute about the amount due to the plaintiff, defendant having promised, after the goods were all delivered, to pay, or see that it should be paid. From the brief reference to the evidence which we have made, it is apparent that it was for the jury to say (1) whether defendant made any promise at all to pay the plaintiff; (2) if he did, whether his promise was an original undertaking to become solely responsible for such goods as the plaintiff should thereafter deliver to the company, or a promise intended and understood bythe parties to be collateral to the principal contract, the company to be the principal debtor, and the defendant a guarantor of performance on its part. These questions were clearly submitted to the jury in a charge to which no exception was taken.

There remains, therefore, for further consideration, only the exceptions taken to the rulings of the court in the admission or rejection of evidence. We shall discuss the questions presented by two of them. Against the defendant’s objection, the court- received in evidence the following letter in the handwriting of Connolly, a clerk of defendant:

Dec. 17, 1880.
“ Dear Sir : Why don’t you send me the report of how many machines you have in process of construction? Please put in works at once 1,000 more generators.
“ Tours, truly,
“H. A. Eoot,
“Mr. Thomas Haddock.
“Per Connolly.”

When received, it had been made to appear that Connolly was, at the time of its writing, Eoot’s clerk, accustomed to write letters by his direction, but had no recollection of special direction to write this letter.' Defendant complains that by it there was placed before the jury as a fact that defendant made orders on his own account, and not as treasurer of the ozone company. There were other letters containing orders confessedly in the handwriting of Eoot, signed by him individually, and so it is not likely that the result was affected by its admission. But it was not error to admit it In addition to the fact to which Connolly testified, that he had been for a number of years, and was at the date of the letter, in Eoot’s employ, and accustomed to write letters by his direction, there were other circumstances, to one of which we shall allude, which, considered in connection with the direct proof of authority, was sufficient to establish prima facie that the letter was sent by the direction of defendant. The defendant appears to have recognized the letter by a subsequent one-in his own handwriting, which continues the correspondence upon the lines of the letter of December 17th. That letter, as we have observed, asked for a report of the number of machines in process of manufacture. Apparently it was replied to, for, the day following, defendant sends a letter in his own handwriting, in which-he says:

“ I am in receipt of your favor of yesterday. You are increasing the number it is trae, but not sufficiently. From your letter it seems that there are about 500 now making. We want, all told, 1,000 as soon as possible.”

The evidence that the letter of the 17th was written by defendant’s direction was sufficiently convincing to make it necessary for the defendant to show that it was not his act, if such was the fact. At that stage of the proceeding the occasion was presented for him to inform the court that it was his purpose to make it appear that the letter was not written by his direction. Had this been done, the- opportunity would, doubtless, have been afforded him to challenge the proofs presented by the plaintiff on that subject, before the admission of the letter in evidence. He elected to stand on the insufficiency of plaintiff’s proof, and without possible injury to his defense, unless he could have proven that the letter was not sent by his direction.

The court excluded the answer to the fourth interrogatory, which was: “ If your answer to the last interrogatory should be 1 Yea,’ state where said company did business, whether it was organized as a corporation, and, if so, under the laws of what state.” Ho injustice was done the defendant by excluding the answer to so much of the interrogatory as called for the location of the company’s place of business, for that had been established prior to the reading of the interrogatory. The only part of it which could possibly be of moment was the inquiry whether organized as a corporation, and, if so, in what state. Appellant now contends that the question calls for something more than proof of incorporation; that it may well have been that the answer was that it was not a corporation, but a voluntary association, doing business under the name of the United States Ozone Company. As we have not the answer before us, we cannot tell whether, by its exclusion, testimony tending to show a voluntary association was rejected.' Such an answer would not have been responsive to the question which inquired whether it was organized as a corporation, not whether it was a voluntary association. On the trial defendant’s counsel, as well as the court, apparently understood that the defendant was attempting to prove incorporation, for the objection taken was that it was not a proper method of proving the organization of the company. The court having indicated an intention to sustain the objection, defendant’s counsel-said: “The organization of a company is proved in that way every day in court.” The question which the court passed upon,, and which counsel for both parties assumed was the only question before the court, was whether the fact of incorporation, when material and not merely collateral, can be proved by parol testimony. The court rightly held it could not be. The judgment should be affirmed, with costs.

O’Brien and Follett, JJ., concur.  