
    J. Gardner Curtis, Resp’t, v. Robert Soltau, App’lt.
    
      (New York Common Pleas,
    
    
      General Term,
    
    
      Filed January 5, 1891.)
    
    Sale—Evidence.
    On the sale of a quantity of gutta percha by plaintiff to defendant, a memorandum of sale, stating the number of packages and terms of sale, was signed by defendant alone. In an action for the purchase price, Held, that the memorandum could not be said to be a contract between the parties; that it was in no sense the contract of plaintiff, and that paroi evidence was admissible to show that the sale was by sample, and that plaintiff warranted the goods sold to be like sample, and that some of the goods received were not gutta percha.
    Appeal by the defendant from a judgment in favor of the plaintiff for the sum of $3,065.48, entered upon a verdict rendered by direction of the court, and from an order denying defendant’s motion, for a new trial.
    The action was to recover $2,589.08, balance of the purchase price of certain lots of gutta percha on September, 6, 1888. The following is the only memorandum of sale which was made:
    
      “Boston, Sept. 6, '88.
    “ Bought of Messrs. J. Gardner Curtis & Co., Boston, the fol-
    lowing lot of Gutta Percha:
    XX. XX.
    0. WP.
    ex-Brilliant.....20 pcs. 14 packages. 84 packages.
    “ Chelsmford .. 86 “ 84 “ 104 “
    “ Slam at...... 93 “ 67 “ 37
    “ Mimi.......“ 34 “ 9 “'
    abt. 199 pcs. abt. 149 bkts. abt. 184 bkts.
    at the price of 32Jc. for C ; 12c. for w?; 12c. for XX.
    “ Terms cash 10 days less 1* brokerage from delivery of each lot as taken, lots all to be taken off by Soltau during month of September, 1888. Tare of each mark to be ascertained by taring actually 10* (ten per cent.) of same and to be applied on the lot. Baskets to be in good order, and any repairing to be done for seller’s account. Sample packages Soltau got to be settled at above prices for the three different marks.
    Egbert Soltau.
    “ Please make out three different delivery orders. One delivery order for each mark.”
    The answer set up that the sale was by sample and that plaintiff expressly warranted and represented the bulk of the gutta percha to be equal to the samples, and that subsequently it was discovered that ninety-eight baskets marked “XX” proved to be a certain foreign substance having no marketable or other value whatever, and possessing none of the qualities of gutta percha, and in no respect corresponding to the alleged samples; and a counterclaim of $994.78 damages is set up resulting from the loss of profits upon a contemplated sale which defendant alleges the plaintiff knew of at the time of the purchase.
    The reply of the plaintiff admits that the defendant received samples of the merchandise, but alleges that they were taken by the defendant himself from the bulk of the gutta percha in warehouse and that defendant personally inspected and had the opportunity to inspect the whole of said gutta percha and after such inspection took such samples as . he chose, and denies that plaintiff made any warranty or representation, and denies that any part of the gutta percha proved to be a foreign substance having no marketable or other value; and, whilst admitting that the plaintiff supposed defendant bought the gutta percha for the purpose of reselling the same, denies that plaintiff knew to whom, or for what price defendant expected to sell.
    
      Geo. M. Pinney, Jr., for app’lt; Frank F. Blackwell, for resp’t.
   Daly, Ch. J.

Upon the trial of the action the defendant offered evidence of conversations with the plaintiff at and before the sale and letters of the plaintiff written before the sale, to prove that the sale was by sample and also that the plaintiff at the time of the' execution of the written memorandum warranted that the gutta percha was of the same quality as the samples; and also offered evidence to show that the ninety-eight baskets rejected were not gutta percha within the meaning of the contract and were not merchantable, and that he had no opportunity for inspecting the goods which he purchased. This evidence was excluded.

There was no written contract of sale on the part of the plaintiff. The memorandum in evidence was signed by the defendant only, and purports to contain his obligation and no more. It cannot be said to be the contract between the parties. Hot having been •signed by the plaintiff it was not in any sense his contract. He could not have been sued upon it, and so far as he was concerned his agreement rested solely in paroi. Under these circumstances, as the agreement of sale has been executed and no question of the statute of frauds can be'raised, the defendant should have been permitted to show by paroi what the contract of the plaintiff was.

Since the trial of this action the precise point has been decided in Routledge v. Worthington Co., 119 N. Y., 592; 30 N. Y. State Rep., 195. In that case, which was an action to recover payment for certain goods sold by the plaintiffs to the defendant, the plaintiffs produced in evidence a writing signed by the defendant by which it agreed to take them at a price specified. Defendant set up a counter-claim and offered to prove by paroi that plaintiffs agreed, in consideration of the purchase and as a part of the agreement, that the trade price at which they sold the goods should not be lowered, and damages were claimed for a breach of that agreement. The testimony was objected to and excluded. This was held error; that the writing represented a part only of the contract, that is, the defendant’s undertaking, while that of the plaintiffs rested simply in paroi; that there was in fact no valid contract between the parties, but as it had been executed this took the agreement out of the statute of frauds and left the parties subject to, and bound by, the terms of the actual agreement made, citing Lockett v. Nicklin, 2 Exch., 93, which was an action of debt for goods sold and delivered, the goods being furnished upon a written order of the defendant, and the defendant offering paroi evidence to prove that the terms upon which the order was given was six months’ credit, etc.; the evidence was held admissible to show the whole contract, of which the paper contains only one of the terms. The rule is stated in the court of appeals opinion as follows: “The rule which rejects paroi evidence when offered with respect to a contract between parties, and put into writing, has no application to a case like this, where, of the original agreement which has been executed, a part only is in writing and the rest was verbal. The principle of liability is the same whether the whole transaction be embodied in one instrument setting forth the respective obligations of both parties, or whether it takes the form of a separate undertaking by each party. Whether we regard the writing of the defendant as an order or as an agreement is quite immaterial. In either view it was an admission only of the defendant’s engagement.”

In the light of this decision, the exclusion of the testimony offered by the defendant of the agreement made by the plaintiff was error, and the judgment must be reversed and a new trial ordered, with costs to abide the event.

Bischoff and Pryor, JJ., concur.  