#### GEROTHMAN W. CORNELL, Assignee, etc., Respondent, *v.*EMERSON P. MARKHAM, Appellant.

*'Contract*— *admissibility of evidence as to the value of services to be rendered, as bearing on the question whether a certain contract was made.*

Appeal from a judgment in favor of the. plaintiff, entered upon the report of a referee.

The action was originally brought by Reynolds Carpenter and Andrew P. Carpenter, to recover of the defendant the rent of certain dwelling-houses occupied by him. Pending the action the ■Carpenters made a general assignment for the benefit of creditors to the present plaintiff, who continued the action in his name.

There was no dispute as to the fact of occupation. The defendant claimed that ho was to keep the books of the assignors, and of one Green, from whom they had purchased ; and that ho and Potter were, each of them, to have the rent of a house, and of a store, for the services of the defendant as such book-keeper. The real dispute between the parties was whether, for such services as book-keeper, there was to be allowed the rent of the .store only, or the rent both of the store and the houses.

The referee found this fact in favor of the plaintiff.

The court, at General Term, after holding that this finding was -sustained by the evidence, said : “ But the defendant insists that the referee erred in excluding evidence.as to the rental value of the store, and as to the value of defendant’s services. Of course-this evidence could not change the bargain between the parties. Whether it was good or bad for defendant, he must abide by it. Nor did the defendant offer the evidence for that purpose. But on the disputed question between the parties as to what the bargain was, he desired to show that the bargain, as testified to on the part of the plaintiffs, was so unreasonable as to throw doubt on the correctness of their theory.

“We think the defendant should have-been allowed to prove their facts. In the case of *Kavcincigh*v. *Wilson*(70 N. Y., 177),. the plaintiff sought to recover commissions for selling real estate. A witness testified to the alleged contract which fixed a certain *276sum for commissions. Proof was given tending to show that this sum was greatly in excess of the ordinary value or price of such services. No intimation is given that such evidence was improper. And the Court of Appeals say that it should have allowed its weight, and therefore that the case should have to the jury. In that case, there was no direct contradictory evidence, as to the terms of the contract. So that evidence was admitted, showing that its terms were unreasonable and excessive.

" In like manner on the question what was, that being in dispute, wo think that, in this case, the defendant should have been allowed to show the attendant circumstances ; 'that is, the value of the things, in respect to which the contract was made, being the services and the rent; and this, not to change the contract, but as evidence of what it was. For instance : if a plaintiff sued a defendant for the, contract price of a watch, and testified that the defendant agreed to pay $1,000 for it, while the defendant testified that he agreed to pay only* $100, would it not be material evidence to show that the watch was worth only $50 ?

*E. F.*Bullard, for the appellant.

*Edgar L. Eursman,*for the respondent.

Opinion by

Learned, P. J.

Present — Learned, P. J., Bocees and Boardman, JJ.

Judgment reversed, new trial granted, reference discharged, costs to abide event.