#### The White Company, Appellant, *v.*White Motor Company, a Corporation, and Philip S. Saitta, Respondents.

First Department,

December 31, 1913.

Contract—agreement by motor company not to establish another agency in certain territory—right of agent to commissions on sales made by company—parol evidence incompetent to vary written contract.

Where a contract between an automobile company and an agent in a certain city provides that the company will not establish another dealer in the city during the continuance of the contract, but does not forbid the making of sales therein, the agent in an action by the company is not entitled to a counterclaim for commissions on machines sold by the plaintiff direct to parties in the city, especially where there is no evidence that the machines were sold prior to the termination of the contract.

The evidence of an oral agreement to allow the agent commissions on sales made by the motor company within the city is incompetent to vary the written contract.

Appeal by the plaintiff, The White Company, from a judgment of the Supreme Court in its favor, entered in the office of the clerk of the county of New York on the 21st day of July, 1913, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 20th day of June, 1913, denying plaintiff’s motion for a new trial made upon the minutes.

*Walter L. Post,*for the appellant.

*Louis Levy,*for the respondents.

Scott, J.:

Plaintiff sues for $4,250 upon two promissory notes made by defendant company and indorsed by defendant Saitta.

The jury rendered a verdict for only $1,051.51, allowing defendant a counterclaim of about $3,200. Defendants do not appeal. We are, therefore, only concerned with the counterclaim which the jury allowed. Defendant company, under the former name of the S. & V. Motor Company, made a contract on July 5, 1910, to act as selling agent for plaintiff in Brooklyn. This contract ran until June 30, 1911. The name was afterwards changed, or a successor company incorporated *717under the name of the White Motor Company, which took over the business and obligations of the S. & V. Motor Company. On July 31, 1911, this contract was renewed for another year by a letter which referred for its terms to forms of contracts used by plaintiff which differed in no material part from the first contract. In October, 1911, the notes in suit were given, becoming due in December. They were not paid. Plaintiff being dissatisfied with defendant’s management of the business, terminated the contract on April 1,1912.

The counterclaim which has been allowed is for a twenty per cent commission on six taxicabs sold by plaintiff direct to a Brooklyn company, the defendant claiming and the court holding that if these sales were actually made before April 1, 1912, defendant was entitled to the commission.

I think the judgment is wrong on two grounds: *First.*The only evidence in the case as to the sale of the cabs is that they were sold after April 1, 1912. It is mere guesswork that they were in fact sold earlier. *Second.*There is nothing in the contract which forbids plaintiff to make sales in Brooklyn, or which gives defendant the right to a commission on sales made in Brooklyn. The only clause in the contract bearing on the subject is an undertaking on the part of plaintiff “to establish no other dealer * * * in the City of Brooklyn * * * during the continuance of this contract.” This does not forbid them to make sales themselves. There is some evidence of an oral agreement to allow defendant commissions on sales made by plaintiff in Brooklyn, but this cannot control or vary the written contract.

The judgment appealed from must be reversed and judgment directed for the plaintiff for the amount of the note and interest, with costs to appellant.

Ingraham, P. J., Clarke, Dowling and Hotchkiss, JJ., concurred.

Judgment reversed and judgment directed for plaintiff, with costs. Order to be settled on notice.