
    JOHN PHILLIPS, Respondent v. FRANK M. ARGUIMBAU, Appellant.
    
      Contract for the purchase of goods, payment to be made by a draft as thereby provided.
    
    The contract provided for payment by draft on defendant’s London bankers drawn by Green & Whineray and in no other way. Held, that the contract contains no promise by the defendant to pay the price of the goods in cash on the arrival of the goods or of the bills of lading in New York, or on the delivery of the goods or of the bills of lading to defendant. The plaintiff sought to overcome the difficulty by proving against the objection and exception of the defendant, that it was orally agreed that defendant should accept the goods on their arrival in New York and pay cash for them. Held, that the positive denial of the defendant that such agreement was ever made, the case presented a question of fact which should have been submitted to the jury, for the defendant moved to go to the jury upon it and duly excepted to the denial of his motion.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.
    
      Decided March 3, 1891.
    Appeal from judgment entered in favor of plaintiff upon a verdict directed by the court, and from two orders denying defendant’s motion for a new trial.
    
      Carter & Ledyard, attorneys, and George H. Balkan of counsel, for appellant.
    
      Dill, Chandler & Seymour, for respondent.
   By the Court.—Freedman, J.

As I read the complaint and the evidence given in support thereof, it appears upon plaintiff’s own showing that the contract upon which this action was brought, contains no promise by the defendant to pay the price of the goods in cash on the arrival of the goods or of the bills of lading in New York, or on the delivery of the goods or of the bills of lading to him, but that the contract provided for payment by draft on defendant’s London bankers drawn by Green & Whin-, eray and in no other way. To hold that the contract required the defendant to pay cash on the delivery of the goods or of the documents therefor, would be equivalent to striking out of the contract the words “ Terms L. 1 C. on London, thro’ Green & Whineray,” and to the making of a new contract between the parties.

At the trial the plaintiff seems to have been conscious of the difficulty, for he thought to overcome it by proving, against the objection and exception of' the defendant, that, upon the refusal of Green & Whineray to act as it was contemplated they should, it was orally agreed between the parties that the defendant should accept the goods on their arrival at New York and pay' cash for them. The evidence relating to such subsequent oral agreement, constituting as it did an important modification of the original contract, was only admissible in case the complaint was broad enough for the purpose. Of this I have grave doubt. But assuming that the complaint was sufficient, the defendant, under his answer, had the right to deny that such subsequent oral agreement' was ever made, and he did deny it in positive terms. In that aspect the case presented a question of fact which should have been submitted to the jury,, for the defendant moved for leave to go to the jury upon it and duly excepted to the denial of the motion.

As the conclusion already , reached necessitates a new trial, it is unnecessary to consider the other questions raised by the exceptions. I cannot refrain, however, from saying that some of the evidence sought to be introduced by the defendant upon the cross-examination of plaintiff’s witnesses, and also as part of his own case, seems to have been erroneously excluded. But as this was probably due to the mistaken view adopted by the trial judge concerning the liability of the defendant under the original contract, and in as much as any error so committed can be readily obviated upon the new trial to be had in conformity with the views herein expressed, a discussion of these questions at the present time may well be omitted.

The judgment and orders appealed from should'be reversed and a new trial ordered, with costs to the appellant to abide the event.

Sedgwick, Ch. J., and Ingraham, J., concurred.  