#### Henry Vogel, Respondent, *v.*Henry A. Weissmann, Appellant.

(City Court of New York, General Term,

March, 1898.)

1. Parol evidence — Admissible, when completing an incomplete written contract.

Parol evidence, which is directed to' the completion and sustention of a written contract in a respect in ¡.which it is.incomplete, is admissible, and does.not tend to avoid or alter the contract.

8. Same — Uncommunicated intention.

Evidence of the uncommunicated intention of onej of the parties to a contract at the time when it was executed, is not admissible to vary , its clearly expressed terms. ' ■

Appeal from a judgment in favor of plaintiff, entered-upon a verdict, and from an order denying a motion for ¡a new trial.

Edward P. Schell and Abram I. Elkus, for appellant.

A. H. Berrick, for respondent.

Olcott, J.

This is an appeal by the defendant from a judgment against him entered upon a verdict and from an order .denying a motion for a new trial. "

The action was brought to recover- upon two causes of action, the first for labor and materials furnished pursuant to a written contract, the second for extra work incidental thereto. At the close of the case, 'however, all claim on the first cause of action was waived, and the case was narrowed to the claims embraced in the second cause of action. One of these last-mentioned -claims was for a storm-door with oval glass furnished in place of one previously furnished with rectangular panes of glass. The: last-mentioned' door plaintiff claims to have been furnished in compliance with the terms of the written contact which called for *‘‘*one pine stonn-door with fancy embossed glass.” Defendant sought to establish that, at the time of the execution of the written contract, it was orally specified that the door should contain oval, glass, so that the door first delivered .did mot comply with the agreement, and that, therefore, the second door should not be charged as an extra item. In piusuance of such contention the defendant was asked by his counsel, *“*Did you not, at th'd time *257the contract was signed, say to Mr. Yogel (the plaintiff) that you wanted oval storm-doors, and did- not Mr. Yogel agree to furnish them?” Plaintiff’s counsel objected upon the ground that it was irrelevant and incompetent, and that all conversations with relation to this work were merged in the written instrument. The court sustained the objection, and defendant’s counsel duly excepted. Yfe think that the court erred in excluding this evidence^ because it was not sought to vary the terms of the written instrument, but only to. explain its intention, where its language was not sufficiently specific. The proposed testimony was directed to the completion and sustention of the written contract in a respect in which it was incomplete, and not at all to tan. avoidance or alteration of it. Lyon v. R. R. Co., 88 Hun, 27; McKee v. De Witt, 12 App. Div. 617; Thomas v. Scutt, 127 N. Y. 133. We do not, however, hold this error to be .ground for reversal, because it was substantially cured, later in the trial, by the defendant being permitted, in response to the question,. “You want this court and jury to understand that Yogel voluntarily took away the first storm-door and took away the 'embossed glass and substituted cut glass miter and oval glass and substituted another storm-door? ” to answer, “ "Which he agreed to, yes.” And, again the defendant testified, “ "When the original storm-door was brought there I saw that it had square ^corners. I then said to Yogel, it is not what we ‘ordered — to send us what we ordered. I said to Yogel, that I wanted a storm-door with oval corners, as we agreed to. He did ¡not say to me that I would have to pay ■ the difference.”

Another alleged - error arose as follows: At a time, when, according to the great preponderance of evidence, most of the alleged extra work, as well as of that conceded to have been called for by the written contract, had been completed (although plaintiff sought to prove that little of the extra work had by that time been furnished), the defendant, at the earnest requests of the plaintiff and his son, paid $1,000 on account, although the job was not quite complete and, therefore,- no payment was then due. At that time, as a result of the settlement of certain,claims and disputes between the parties, the defendant received a paper of which the following is a copy:

“ $1,000. Hew Yobk, *October*17, 1895.

“Received from Henry A.- Weissmann, One thousand dollars on account, leaving a balance of Three hundred dollars, which *258will be paid when .completed, which will ,b® payment in full for all work done-in the store, s. e. cor. 110th Street and Park Ave.-, city. .

> “Henby Vogel per John Vogel.”

There is a dispute' as to whether the plaintiff was personally present at the time of the execution and delivery of this instrument, but, at all events, it was signed by the plaintiff’s' Son; John Vogel, who’. had in precisely the same manner signed -the original' written contract; he was with hia father in business and attended to its details, and signed the- contracts as .plaintiff could not read or write; he was sent by his father, to collect money from the defendant; and an examination of all the evidence convinces us, notwithstanding plaintiff’s effort to profit by the agency of the son, when it was profitable, and to repudiate it when such a- course1 appeared desirable, that the plaintiff held out .his son as'his agent for the purpose of all those dealings with the defendant; and that he is hound by them, having never notified defendant that his son’s agency was revoked; so that we must hold the plaintiff chargeable with the obligation' which -his son assumed to impose' upon him by the delivery of the instrument last above quoted. On. the witness stand, the son was permitted' (against’ a duly taken objection and exception by defendant’s counsel), in answer to. the question, *“*"What did yon mean when you- signed this paper, which says that $300 was to he paid after the $1,000 was paid, for all work?” to testify, “I meant that the work we.put- in the store the work that we done according to the contract.” Such question and answer should have been excluded under- the well-settled rule that ■ evidence of the uncpm m unicated intention of- one of the parties at the timé of ¡entering into a written contract, is not receivable to vary the clearly expressed terms of such -contract. ; Humphreys v. E. E. Co., 121 N. Y. 435, 444. For,, the iñstru-, ment last above quoted was not merely a receipt but an agreement in the nature of an 'account stated,', by which, in consideration of the- advanced payment of $1,000 on account and of the defend- . ant’s waiver of his objections to the work, the' plaintiff agreed to take--$300 as full settlement for the balance. When the learned justice charged the .jury, he said, *“*It is for you to determine, first, whether any extra work was ordered by the defendant. If he ordered the extra work to he done, and Vogel did the work, he is entitled to the reasonable value or- compensation for it. That *259is virtually all there is in the case. It is for you to say from all the evidence which has been introduced, whether Weissmann ordered Vogel to do this extra work, and, ,if Vogel, in consequence of that order, did work, • he is entitled to pay or whatever the value of the extra work was, and that value you must judge from the evidence.” 5

To this portion of .the charge the defendant’s counsel duly excepted, and he then asked the court to charge *“*That, if at the time the paper dated October *11,*1895, was executed and delivered to the defendant all the alleged extra work was done, the plaintiff cannot recover.”

This request was declined and an exception taken.

We think that the learned trial justice’s charge and refusal, above quoted (and which were not wholly corrected by the latter portions-of the charge) folio-wing the admission of John Vogel’s testimony,-above referred to, that he meant the instrument of October *11,*1895, ten refer only to the work done under the written contract, permitted the jury to divest their minds of any consider-; ation of the effect of the instrument of October *'ll,*1895, or at least, permitted them to find that, even if all the alleged extra work was completed, or nearly completed on October *11,*1895, the plaintiff could still recover on the theory that the instrument of that date applied only to work under the .written contract. This was fundamentally injurious to the defense; for it left uncontradicted the son’s testimony, that he meant the paper to- relate only to the contract work, a statement which, of course, could not be controverted, and which never should have reached the jury, and which, being admitted by the court against the objection, may well have influenced their verdict.

There were other objections noted; and considerations as to them, and as to .other points in the case are ably raised by ¡counsel for both parties; but nothing which the record presents seems to overcome the error which we have last discussed; and for that the judgment and order should be reversed, and a new trial ordered, with costs to appellant to abide event.

Fitzsimons, Oh. J., and O’Dwyer, J., concur.

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