
    Favill v. Perkins.
    
      (Supreme Court, General Term, Second Department.
    
    July 2,1889.)
    Contracts—Actions—Evidence.
    Where a shipping contract made with plaintiff by defendant’s agent provided unconditionally for delivery of the goods in August, 1887, evidence that when the contract was shown to defendant he instructed the agent to get an extension of time of delivery to September 3, 1887, which instructions were not shown to have been reported to plaintiff, is inadmissible.
    Appeal from circuit court, Kings county.
    Action for breach of a contract of shipment brought by Josiah M. Favill against C. Lawrence Perkins. Defendant appeals from an order setting aside a verdict in his favor and granting a new trial.
    Argued before Barnard, P. J., and Pratt, J.
    
      Ulin, Rices & Montgomery, for appellant. Rufus 0. Catlin, for respondent.
   Barnard, P. J.

The order setting aside the verdict of the jury ought to be affirmed on two grounds. Evidence was given tending to show an absolute contract to convey certain freight at a certain price. The contract was made by the shipping clerk of the defendant. It was finally reduced to writing, and signed by the plaintiff. The defendant was permitted to prove that he told his clerk, when the contract was shown to him, to get an extension of time to deliver the freight until the 3d of September, 1887; the contract calling for a delivery in August, 1887, “if the vessel should arrive here, so that we could deliver the rails to him by September 3.” There was no proof that the clerk ever reported the instructions to the plaintiff. It was not inserted in the paper, and the paper was without this condition being entered in it. The clerk was sent to malee this contract, and he made it for the principals. An instruction given to him to make it conditional, never communicated to the plaintiff, and never agreed to by him, was improperly received. The verdict was so entirely against the evidence as to call upon the court to set it aside. The agreement is in its terms absolute. It was not performed by the defendant. The plaintiff was damaged. There was not the slightest proof that the agreement was in fact subject to a condition. There is proof tending to show that a breach of the contract by the defendant was occasioned by the fall in-freight. The owners of the iron, by their manager, instructed the defendant that the contract was an option, and that, as the iron did not arrive in time to-deliver it to the plaintiff by the 3d of September, the option had expired, and he proposed to take advantage of the lower rate, except that lie would allow the plaintiff five cents per pound higher than the market rate. If there was no condition there was no option, and the reason assigned was only a pretense to break the contract. The order setting aside the verdict should therefore be affirmed, with costs of the appeal.

Pratt, J., concurs.  