Routledge v. Worthington Co.

• Decision Date: 21 March 1890
• Citation: 23 N.E. 1111,119 N.Y. 592
• Parties: ROUTLEDGE et al. v. WORTHINGTON CO.
• Court: New York Court of Appeals Court of Appeals

119 N.Y. 592

23 N.E. 1111

ROUTLEDGE et al.

v.WORTHINGTON CO.¹

Court of Appeals of New York.

March 21, 1890.

Appeal from superior court of New York city, general term.

This action was brought to recover payment for certain sets of Dickens' works, sold by the plaintiffs to the defendant. To sustain their action, plaintiffs read in evidence upon the trial the following paper, viz.: ‘New York, March 8, 1886. Messrs. Geo. 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, 30 days from delivery, 5 per cent., for cash. We have ordered Baldwin to deliver boxes to Baldwin for the Bulwer. Terms, cash, 30 days, $4.00 per set. Imprint of Dickens' change from 28 La Fayette 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 counter-claim, 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 $6.50. 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 from the judgment, as affirmed by the general term, the defendant has appealed to this court.

E. Ellery Anderson and Anderson & Man, for appellant.

Charles N. Judson, for respondents.

GRAY, J., ( after stating the facts as above.)

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...