#### David H. Blair and Walter Blair, Respondents, *v.*Gustave M. Minzesheimer and Leo Harburger, Appellants.

First Department,

February 7, 1908.

Evidence — varying written contract — independent contract — verdict against evidence.

Although the purchasers of shares of stock-entered into a written agreement to hold the shares for a specified period, evidence is admissible of an oral contract between the parties by which the vendor agreed to repurchase a portion of the shares at the end of that period at tlie same price, if the purchaser so elected, as the oral contract did not tend to vary tlie terms of the written one, but related to a matter outside and independent of it. .

*178The making of suck oral contract, the effect of which would be to permit the vendor to profit if the market should rise without danger of loss if it should fall, is so improbable that in an action to enforce it, there being no supporting corroborating circumstances, tjre .court will reverse a judgment in favor of the plaintiffs on the ground that the verdict was against the weight- of , evidence, where its existence was testified to by both of the plaintiffs but denied by both of the defendants.

Ingraham, J., dissented, with opinion.

Appeal by the defendants, Gustave M. Minzesheimerand another, from a judgment of the Supreme Court in favor of the 'plaintiffs, . entered in the office of the clerk of the county of .New York on the 2M day of June, 1907, upon the verdict of a jury, and also from an order, entered in said clerk’s office on the 20th day of June, 1907, denying the defendants’ motion for a new trial made upon the minutes.

*John F McIntyre,*for the appellants.

*Israel Ellis,*for the respondents.

Houghton, J.:

It is claimed by the plaintiffs arid conceded by the defendants that the plaintiffs as copartners purchased from defendants and paid for 500 shares of stock" of the" Butte-Hew York Copper Company at nine dollars per share,, and agreed . to hold the same irrespective of the market price for the sixty days following such purchase. The sale was made slightly below the market and this concession in price is alleged to be the inducement for the agreement not to sell within the specified period. It is claimed by" the-' plaintiffs, however, that the defendants agreed, in consideration of such purchase, to take back at the" end of the sixty days, if plaintiffs so elected, "400 of the 500 shares and repay to plaintiffs the nine dollars per share which they had paid. The price of the shares, having fallen, the plaintiffs tendered é00 shares-, which the defendants refused to receive, and this action.is brought to recover such purchase price. The jury rendered a verdict in plaintiffs’ favor and the defendants appeal. " • -

The agreement to hold the 500 share® for sixty days was proved by -defendants to: hare been red need to writing rod signed, by *179the plaintiffs. Defendants contend that because such contract was in writing, oral evidence of an agreement to repurchase the stock was improperly admitted.

W'e do not concur in this view. The written agreement related only to the holding of the stock for sixty days. Oral evidence that there was another and supplemental agreement to repurchase a portion of the stock at the same price at the end of that period did not tend to vary the terms of the written contract, for the evidence related to an alleged contract, outside and independent of the written one.

The fact that a written agreement was made respecting the stock at the time of its purchase and that nothing was provided therein relating-to a repurchase was an evidentiary circumstance in favor of defendants’ contention that no agreement to repurchase was in fact made else it would have been incorporated. The written, agreement, however, provided for but one thing, and oral evidence that another and independent agreement was made, on the same occasion, to repurchase some of the stock at the end of the holding period, did not vary the terms of the written agreement and, hence, was proper evidence.

We are of the opinion,, however, that upon the facts disclosed by the record the agreement testified to by the plaintiffs was so improbable that the judgment must be reversed on the ground that the verdict was against the weight of evidence.

The defendants testified positively that no such agreement was made. The effect of the agreement claimed by the plaintiffs was to permit them to make whatever profit there might be on the purchase of the stock if the market price should rise, and to get back what they paid if it should fall. Of course, a broker might make such a bargain if he saw. fit, but it is quite improbable that he would, hlo circumstances appear showing any reason for such an agreement by defendants. The contract is testified to by both of the plaintiffs and denied by both of the defendants.

The burden of proof rested with the plaintiffs, and there are no corroborating circumstances supporting their contention, and in view of the improbable character of the contract, we think the weight of evidence was so great in defendants’ behalf that the verdict should have been set aside and a new trial granted,

*180The judgment and order should. be reversed and a new trial granted, with costs to the appellants to abide the event.

Pattebson, P. J., McLaughlin and Laughlin, JJ., concurred ; Ingbaham, .J., dissented,

Ingbaham, J. (dissenting):

I do not concur in the view that this contract sued, on was so improbable that this court should reverse the verdict as against the weight of evidence. The defendants might have had such confidence in the'future value of a stock, provided that it was not forced upon the market within sixty days, that they would he willing to sell it to the plaintiffs with the agreement that if the plaintiffs would hold it for sixty days they would then take it back if the. plaintiffs desired to rescind the contract of purchase, and the court or jury would not he hound to refuse to credit positive .evidence that such a contract was made. While the court would have been better satisfied with the verdict if it had been for the defendants, the plaintiffs expressly testified that such a contract was made, and, if the jury believed them, I see no' reason for disturbing their verdict.

I think the judgment should be affirmed.

Judgment and order reversed, new trial ordered, costs to appellants to abide event.