
    Mary C. Leary, as Administratrix, Etc., Respondent, v. Harrison B. Moore, Appellant.
    (Supreme Court, Appellate Term,
    November, 1905.)
    Evidence — Parol evidence— Subsequent modifications — Subsequent admissions.
    The statement of the terms of an oral agreement for the purchase of lumber, contained in the written confirmatory letters or memoranda of one of the parties thereto, does not bind the writer; but he may show what the real contract was and, in so doing, may contradict or supplement the writings.
    Where, in an action for the price of Íumber, it appears that, upon the day after an oral order for the lumber was given by defendant to plaintiff’s intestate and accepted, defendant wrote him a letter referring to their conversation of the day before in which he stated that he understood plaintiff’s intestate would furnish the lumber for $23.50 per thousand feet and gave detailed instructions as to quality, description, time of delivery, etc., and where the defendant contends upon the trial that the price of $23.50 was inserted by inadvertence; that the real agreement was $22.50, and offers to show, by witnesses other than himself, what took place at the conversation between him and plaintiff’s intestate, a ruling of the trial court that, as matter of law, the letter constituted the contract between the parties and excluding the offered testimony, is error.
    Appeal by the defendaut from a judgment of the City Court of the city of Hew York, entered by direction of the court, after a trial before the court and a jury..
    
      Jesse W. Johnson, for appellant.
    Albert A. Wray, for respondent.
   Scott, J.

Sometime in February, 1901, the defendant and plaintiff’s intestate entered into a contract, whereby the latter sold to the former a quantity of lumber at an agreed price. What that price was is a matter of dispute; defendant claiming that it was twenty-two dollars and fifty cents per 1.000 feet, and plaintiff insisting that it was twenty-three dollars and fifty cents per 1,000. The defendant has paid twenty-two dollars and fifty cents per 1,000 for all the lumber delivered, and the action involves the one dollar per 1.000 which is in dispute. It appears that the parties met on February 5, 1901, at a restaurant, and came to an agreement as to the price to be paid for the lumber; and, on February sixth, the defendant wrote to plaintiff’s intestate a letter, referring to the conversation on the preceding day, stating that he understood the latter to say that he would furnish the lumber for twenty-three dollars and fifty cents, and giving certain detailed instructions as to quality, description, time of delivery, etc. The defendant contends, and has apparently contended from the first, that the price of twenty-three dollars and fifty cents was inserted in the letter by inadvertence and that the real agreement was for twenty-two dollars and fifty cents; and, to substantiate this contention, he offered proof as to what took place at the conversation of February fifth, there having been witnesses -present other than the two principals. The court below held that the letter of February sixth constituted the contract between the parties; and, as it was in writing, declined to receive evidence of any prior conversation, or negotiations which might tend to vary it. The question then is, whether the real contract between the parties was the oral agreement, said to have been arrived at on February fifth, or was the letter written on February sixth. If it was the latter, the ruling below was right. If it was the former, the court erred in excluding the testimony offered. Of course, nothing is more common than for two merchants to arrive at an oral agreement and, subsequently, exchange letters referring to the agreement thus made and confirming it. In such cases, the rule is, that it is the oral agreement which constitutes the contract between the parties, and that the letters are merely evidence of what had been previously agreed upon. In such cases; the parties are not bound by the statement of the terms of the contract as contained in the written confirmatory letters or memoranda; but may show what the real contract was and, in doing so, may contradict or supplement the writings. Brigg v. Hilton, 99 N. Y. 517, 526; Lichtenstein v. Rabolinsky, 75 App. Div. 66. In the case under examination, it is certain that some kind of an oral agreement for the sale of the lumber, at a stated price, was arrived at between the parties on February fifth. In his letter of February sixth, defendant writes: “Referring to our conversation yesterday in Davison’s I understood you to say that you would furnish me the yellow pine timber * -* for ¿hg gum 0f $23.50 per M. ft.”. In a letter from plaintiff’s intestate to the defendant, dated February se\ enth, the writer said: “ I wrote my mill man south on the 5th saying I had the order at $23.50 as he has copy of the schedule you gave me last fall ” ;• and, on March twenty-fifth, plaintiff’s intestate wrote to defendant: Within one hour after I accepted your verbal offer of $23.50 per M. ft. for timber to build your Dry Dock on Feb’y 5th * * * It seems to be quite clear, therefore, that an order was given and accepted on February fifth, the day prior to the date upon which was written the letter which the court below treated as the contract between the parties. Even read by itself, if there had been no other evidence of a prior contract, the letter of February sixth appears, upon its face, to be nothing more than a letter of confirmation. In its first paragraph, it refers to the conversation of the previous day, and expresses the writer’s understanding of the purport of that conversation. In its second paragraph, it promises future advices as to the size of the lumber first desired, with an understanding, perhaps intended as a stipulation, as to when shipments should be made. And, in the third and last paragraph, is an offer to furnish a corrected schedule, and a condition as to the quality of the lumber. Ho where in the letter is to be found' any acceptance of any offer, or any agreement to take the lumber, or any clause in any way binding the defendant, its signer, to anything at all. It may be said of it, as was said by the Court of Appeals of a much more explicit memorandum, in Brigg v. Hilton, supra:It contains no promise nor undertaking. It does not (sell) huy the goods nor does it assume to do so. It was not intended to be a contract * * *. It afforded information by which each of these parties might be guided, and can at the utmost be considered as the recital of things which had been agreed .upon, not as an agreement in itself”. We are, therefore, of the opinion, that the court helow erred in holding, as a matter of law, that the letter of February sixth constituted the contract between the parties, and in excluding all evidence, otherwise competent, as to an oral' agreement on February fifth, which the evidence tends to show was the real contract between the parties. The question whether there was such an oral contract and, if so, what its terms were, should have been submitted to the jury. There are many exceptions in the case, but nearly all of them are covered by this opinion. Those not covered, it is not necessary to consider at this time, as we are agreed that the case must be retried.

Gildebsleeve and MacLean, JJ., concur.

Judgment reversed and. new trial granted, with costs to appellant to abide event.  