
    John T. Whitlock, Respondent, v. Childwold Park Hotel Company, Appellant.
    Third Department,
    June 29, 1910.
    Evidence — contract of employment — varying written contract hy parol — right to use wood — modifying judgment.
    Where one employed under a written contract to superintend certain properties sues to recover for services and the owner counterclaims for the value of certain wood used, oral evidence offered by the plaintiff to show that he was told by the defendant’s representative as part of the contract that he could use all the wood he wished, is inadmissible to supplement the terms of the written agreement.
    
      It seems, that if the evidence that the defendant’s representative told the plaintiff he could cut all the wood he wished was admissible, it would not show a right to use wood already cut and prepared for use before he was employed.
    Where the only error in awarding judgment to plaintiff was in failing to give defendant credit for wood used, the judgment will be allowed to stand on condition that the plaintiff deduct the value of the wood.
    Appeal by the defendant, the Childwold Park Hotel Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office' of the clerk of the county- of Franklin on the 9th day of October, 1909, upon the report of a referee.
    
      Cantwell & Cantwell [John M. Cantwell of counsel], for the appellant.
    
      Kellas & Genaway [J. P. Kellas of counsel], for the respondent.
   Kellogg, J.:

The result of the trial is satisfactory and we find no error to the prejudice of the defendant, except the following: The defendant sought to offset against the plaintiff’s claim for services seventy-five and seven eighths cords of wood of the value of two dollars and twenty-five cents per cord, which belonged to the defendant and, was used by the plaintiff. The contract between the plaintiff and defendant was in writing, and contained no provision indicating that the defendant was to furnish plaintiff with firewood. It provided that the defendant employ the plaintiff at a salary of sixty-five dollars a month to superintend its property at Childwold. He was to keep and render an account of moneys received and disbursed, to have the care and oversight of the company’s property, to hire and discharge employees, and was to have free use of the lodgings in the guide house customarily used by the superintendent, including four bedrooms, kitchen and sitting room. He was also to have, for the use of himself and family, such vegetables as might be on the company’s estate. This agreement continued from September 9, 1907, to the 8th of March, 1908, when a further written agreement was made by which the company employed him as'superintendent from April 1, 1908, to April 1, 1909, at seventy dollars per month wages. It agreed to let to him the guide house at a rent equivalent to ten per cent of the gross revenue from paying boarders and lodgers. He was to give suitable accommodations in the Hayes and Green cottages to the men employed by the company at such rates as he might decide upon, and to pay the company fifty cents per week for each paying boarder in said two cottages, except such boarders as were in the company’s employ, it to spend two hundred and fifty .dollars in fitting up and equipping the guide house, he to have the privilege of raising vegetables for his table.

The referee permitted,.over the defendant’s objection, evidence by plaintiff that it was agreed as a part' of the contract of hiring that the plaintiff was to have, his wood and vegetables. He. quotes the defendant’s representative as saying: “ There is woods there, you are surrounded by woods, you are right in the woods, you can have all the wood you want,; * .* * we have always furnished the superintendent with wood; * * * you are "supposed to have your wood, and the superintendents have had it; there is plenty of it there and don’t go cold; use what wood you want, * .* * the company can pay for what wood it is' necessary to burn up there; * * * he wrote it in the contract that I was to have vegetables for the table.” '

The question as to wood relates to the wood already cut and prepared for use before the superintendent came upon the place, and I think .this testimony was inadmissible so far as it tends to show that the plaintiff had the- right to use this wood without compensation. It changes the terms of the agreement. The agreement specifies, the right to raise vegetables, but omits wood. If the evidence was admissible I think the conclusion of the- referee is wrong that it 'related to wood already cut. At most it was permission to take-wood from the woods, that is, to prepare wood for use, and not to take the wood which had been cut and stored, for the use of the company. It was not unreasonable that the superintendent might cut and supply himself with wood from the forest, but it is unreasonable to expect that he could keep boarders and that the company was to furnish the leased boarding and lodging house wood already cut and prepared for. use elsewhere.

The judgment, therefore, is erroneous and against the weight of evidence, so far as it relates to the wood. If the amount of the wood is deducted from the judgment, there is no reason why the remainder of the judgment may not stand.

The judgment is, .therefore, reversed upon the law and the facts, the referee discharged and a new trial granted, with costs to appellant to abide the event, unless the plaintiff within twenty days stipulates to deduct from the damages $169.72, in which case it is so modified, and as modified affirmed, without costs to either party in this court.

All concurred.

Judgment reversed on law and facts, referee discharged and new trial granted, with costs to appellant to abide event, unless plaintiff within twenty days stipulates to deduct from the damages $169.72, in which case it is so modified, and as modified affirmed, without costs to either party in this court.  