
    George Routledge et al., Resp’ts, v. The Worthington Company, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed March 21, 1890.)
    
    1. Evidence—Statute op Frauds—Varying writing by parol testimony—Executed contract.
    On March 8, 1886, defendant wrote to plaintiff as follows: "I agree to' take 1,000 sets Dickens’ sheets, same as last, as under. * * * Imprint of Dickens’ change from 28 Lafayette place to 747 Broadway; all else will do.” Defendant, by way of counterclaim, alleged that part of the agreement was that the trade price should not be lowered by plaintiffs from $6.50, but the court excluded evidence as to such counterclaim and directed a verdict for plaintiffs. Held, error.
    2. Same.
    Where the memorandum of a transaction does not contain within itself, or by reference to other writings, all the substantial elements of a contract, but there has been such a performance as to take it out of the operation of the statute, parol evidence is admissible to supply omissions and to establish contractual relations of the parties.
    Appeal from judgment of general term, superior court of city of New York, affirming judgment entered in favor of plaintiffs on verdict.
    This action was brought to recover payment for certain sets of Dickens’ works sold by the plaintiffs to the defendant. To sustain his action plaintiff read in evidence, upon the trial, the following paper, viz.:
    
      New York, March 8, 1886.
    
      Messrs. George Routledge & Sons:
    
    Gents.—I agree to take 1,000 sets Dickens’ sheets, same as last, as under:
    250 sets, delivered as soon as printed.
    250 sets, to be delivered in July.
    250 sets, to be delivered in September.
    250 sets, to be delivered in November.
    Terms thirty days from delivery, five per cent, for cash. We have ordered Baldwin to deliver boxes to Baldwin for the Bulwer. Terms cash, thirty days, $4.00 per set.
    Imprint of Dickens’ change from “ 28 Lafayette place to 747 Broadway; ” all else will do.
    Worthington Company.
    The defendant admitted making the agreement for the purchase, as alleged, but, by way of counterclaim, alleged that, at the time it was made, it was part of the agreement that the trade price at which the plaintiffs sold those works should not be lowered, and that that price then was six dollars and fifty cents. The defendant sought to prove this agreement of the plaintiffs by parol testimony, but the proposed evidence was excluded.
    By direction of the court, the jury rendered a verdict for the plaintiffs; and Rom the judgment, as affirmed by the general term, the defendant has appealed to this court.
    
      E. Ellery Anderson, for app’lt; Charles N. Judson, for resp’ts.
    
      
       Reversing 23 J. & S., 565.
    
   Gray, J.

In the exclusion of evidence to show that the plaintiffs on their part agreed not to reduce the trade price of the books,, which the defendant had agreed to purchase, the learned trial judge committed an error, which is fatal to this judgment. The instrument, upon which plaintiffs seek to charge the defendant with a liability to them, resulted from a previous agreement between the parties for the sale and purchase of these sets of Dickens’ sheets. Some arrangement had been agreed upon between them respecting the transaction and, subsequently, in consequence of a request on behalf of the plaintiffs for a formal order, this writing was sent to them by defendant There is no doubt, or dispute, as to its. sufficiency to charge the defendant; but it represented only a part of the whole contract. Its execution is not denied; but the defendant’s claim and allegation were that the plaintiffs, at the time the contract was entered into, engaged to do something on their part and have failed to keep their engagement.

Now this is the case, as I understand it. There was an agreement entered into, whereby the plaintiffs undertook to sell and the defendant to buy a certain edition of the works of Dickens, and there were stipulations made as to the terms and conditions of the sale and of the purchase. The defendant’s undertaking is-shown by the writing signed by it; but the plaintiffs’ lay wholly in parol. There was no contract between the parties; but their agreement has been executed, and that suffices to take the matter out of the operation of the statute of frauds and leaves the parties, in an action to recover the price, subject to and bound by the conditions and terms of the actual agreement which they made. The defendant is concluded, prima facie, as to its promises by the writing; but whether the plaintiffs promised something more than can be inferred from that writing and which may constitute a separate undertaking leading to the defendant’s order, and what they did at the interview when the bargain was arranged, must be shown by a resort to the conversation. The testimony, which the defendant has sought to elicit, bore upon that transaction and was offered with the view of proving what then was said and done about the matter of a. sale.

The proposed evidence was predicated on the allegation of a reciprocal engagement on the plaintiffs’ part relating to the same subject matter. The trial judge committed no error in excluding the proposed evidence of what had been the agreement in respect to the selling price in some prior transaction between the parties; but, in respect to this particular transaction, it was perfectly competent for the defendant to prove a separate and distinct undertaking of the plaintiffs with the defendant that they would not affect its trade by reducing the trade price. Under the statute of frauds the memorandum must contain within itself, or by reference to other writings, all the essential elements of a contract and where that is the case neither party will be permitted to prove', that there was any other contract made than that one. If, however, it is not sufficient under the statute to constitute such a contract, but there has been such a performance as to take it out of the operation of the statute, parol evidence is admissible to supply omissions and to establish what were the contractual relations of the parties. In Lockett v. Nicklin, 2 Exch., 93, which was an action of debt for goods sold' and delivered, the goods were furnished upon a written order of the defendant. The defendant, offered parol evidence to prove that the terms, on which the order was given, were six months credit, etc. The evidence was held admissible. It was there said by Alderson, B., The documents in question are not a contract, but are writings out of which, with other things, a contract is to be made. The question then is whether the defendant has not a right to adduce evidence, not to contradict the written instruments, but. to show the real contract, of which the paper contains only one of the terms. In order to do this the defendant must resort to the previous conversation. * * * In holding this evidence admissible we do not trench on any of the cases.” In Batterman v Pierce, 3 Hill, 171, Judge Bronson sustained a defense to a note given by the defendant, upon the sale of a lot of wood on plaintiff’s land,, which was based upon the proof that the plaintiff had verbally agreed, prior to the sale, that if anything occurred to the wood through his means, he would be accountable and would guarantee the purchasers against any damage in consequence of his acts.

The principle of the decision was that there were mutual stipulations between the parties, all made at the same time and relating to the same subject-matter, and the whole engagement was open to proof. The cases of Chapin v. Dobson, 78 N. Y., 74; Van Brunt v. Day, 81 id., 251, and Brigg v. Hilton, 99 id., 517, fully sustain the proposition that in such, a case as this, where the agreement of the plaintiffs rested in parol, it is open to proof. The rule which rejects parol 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 q>ne written 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.

We do not agree with the appellant’s counsel that there was any ambiguity in that paper which called for explanation by parol evidence. It was clear and explicit enough and the words “same as last,” in reference to the agreement to take so many Dickens’ sheets, plainly indicated the kind of sheets and nothing more. Any other meaning would be forced and unnatural.

As the views I have expressed lead to a reversal of the judgment appealed from, it is not necessary for us to discuss the other question as to the assessment of damages, which the counsel for the appellant has argued. Upon a new trial any question in that respect may be obviated.

The judgment should be reversed and a new trial ordered, with costs to abide the event.

All concur.  