Newhall v. Appleton
| Decision Date | 13 April 1886 |
| Citation | 102 N.Y. 133,6 N.E. 120 |
| Parties | NEWHALL v. APPLETON and others. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from general term superior court of the city of New York, affirming judgment for defendant entered upon opinion of referee.
A. R. Dyett, for appellant.
E. W. Paige, for respondents.
By the terms of the oral contract, as testified to by the plaintiff, and as found by the referee, the plaintiff was to be paid four dollars an order for subscriptions obtained by him for the serials, Picturesque Europe and Turner's Gallery, publishedby the defendants. The plaintiff claimed that, by the true interpretation of the contract, he was entitled to four dollars for every bona fide subscription obtained. It was insisted on the other hand by the defendants that the contract meant that the plaintiff was to receive four dollars for every good or proved subscription, meaning thereby a subscription upon which at least 10 numbers of the serial subscribed for should be delivered and accepted.
This question was regarded by the referee as the vital question in the case. The defendants sought to establish their interpretation of the contract by two lines of evidence: First, by showing that in the trade the words ‘four dollars an order’ meant four dollars for a proved order; and, second, that their contracts with their canvassers generally were made with this understanding of the meaning of the phrase, and particularly that this was the understanding between them and the plaintiff. The defendants, in support of their case, were permitted to give in evidence, under objection, their books containing accounts with a number of persons who had been employed as canvassers, in which the subscriptions obtained were separated into two classes, proved and unproved, or good and bad, and a credit given for good subscriptions only.
This evidence was, we think, incompetent. The transactions of the defendants with other agents were res inter alios acta. The only apparent object of the evidence was to show, by inference, what the contract with the plaintiff was, or the practice of the defendants in their business in respect to compensation. On neither ground can its admission be justified. It did not appear that the plaintiff was cognizant for the transactions indicated, and as to him the entries were the mere declarations of the defendants in their own favor. If the admission of the account of Taylor could be justified on the ground that it tended to...
To continue reading
Request your trial
-
Cummins v. Pennsylvania Fire Ins. Co.
... ... St. Rep ... 1110); Strauss v. Insurance Co., 9 Colo.App. 386, ... (48 P. 822); Railway Co. v. Allison, 115 Ga. 635, ... (42 S.E. 15); Newhall v. Appleton, 102 N.Y. 133, (6 ... N.E. 120). And in the absence of statute the rule is not ... otherwise where the person making the memoranda has ... ...
-
Cummins v. Pa. Fire Ins. Co.
...St. Rep. 1110;Strauss v. Insurance Co., 9 Colo. App. 386, 48 Pac. 822;Railway Co. v. Allison, 115 Ga. 635, 42 S. E. 15;Newhall v. Appleton, 102 N. Y. 133, 6 N. E. 120. And in the absence of statute the rule is not otherwise where the person making the memoranda has since died. Luke v. Koene......
-
Underwood v. Greenwich Ins. Co.
...Fiedler, 12 N. Y. 40;Walls v. Bailey, 49 N. Y. 464;Collender v. Dinsmore, 55 N. Y. 200;Silberman v. Clark, 96 N. Y. 522;Newhall v. Appleton, 102 N. Y. 133, 6 N. E. 120; Id., 114 N. Y. 140,21 N. E. 990;Hopper v. Sage, 112 N. Y. 530-535, 20 N. E. 350;Smith v. Clews, 114 N. Y. 190, 21 N. E. 16......
-
Hart-Parr Co. v. Krizan & Maler
...to such fact." Citing Kelley v. Schupp, 60 Wis. 76, 18 N. W. 725; Evans v. Koons, 10 Ind. App. 603, 38 N. E. 350; Newhall v. Appleton, 102 N. Y. 133, 6 N. E. 120; Roberts v. Dixon, 50 Kan. 436, 31 Pac. 1083; Altman v. Fowler, 70 Mich. 57, 37 N. W. Defendants in error also cite in their moti......