#### Adamo Ciccarone, Respondent, *v.*Benjamin C. Brown, Appellant.

(Supreme Court, Appellate Term,

March, 1912.)

Contracts — Validity of contracts'—Interpretation of contracts — Sufficiency of evidence of performance.

Where plaintiff testified that his performance of a contract to furnish defendant with the necessary material and labor for the foundation walls of a new building at an agreed price was, to his damage, prevented by defendant who claimed that there was no contract, and it appears that, following the conversation between the parties, defendant prepared a written contract, questions put to plaintiff on cross-examination based on the written contract and his corrections thereof are relevant as to the probability of his testimony "that the contract was an oral one, and the exclusion of the testimony, on the ground that plaintiff not having signed the written contract was not bound thereby, is error.

Appeal by defendant from a judgment in favor of plaintiff rendered in the Municipal- Court of the city of Hew York, borough of Manhattan, eighth district.

Alexander & Ash (Charles Trosk, of counsel), for appellant.

"Wahle & Kringel (H. Lionel Kringel, of counsel), for respondent.

Guy, J.

The defendant appeals from a judgment in favor of plaintiff. The appellant’s brief on the motion to set aside the judgment is mainly taken up with a discussion of the *658weight of evidence as to whether or not a contract was actually made between plaintiff and defendant. On this point the verdict of the jury might well he taken as conclusive, but for erroneous rulings excluding relevant testimony bear-' ing upon this question at issue. Plaintiff testified as to an oral contract made with the defendant, whereby plaintiff agreed- to furnish defendant and defendant employed plaintiff to furnish him with the necessary materials and labor for , concrete footing and rubble foundation walls for a new building to be erected by defendant at the agreed price of $675.. Plaintiff testified that pursuant to said agreement he commenced work, expended moneys and hired help, but was prevented by defendant from completing the contract, whereby plaintiff was damaged in the sum of $156. Defendant contended that the conversation with plaintiff did not result in the making of a contract, but was merely a preliminary discussion of terms. The evidence shows that the defendant, following such preliminary discussion, prepared a written con- ' tract, which was never signed by the plaintiff, but upon which it was proven that plaintiff made numerous. corrections.. Defendant’s counsel, with a view to showing there was no meeting of the minds of plaintiff and defendant as to the essentials of a contract, asked the plaintiff numerous questions based upon the written contract and upon plaintiff’s written corrections thereof. This evidence was excluded on the ground that such contract was not signed by and did not bind the plaintiff. The questions which were excluded, however, w.ere clearly permissible and relevant on cross-examination as going to the probabilities of plaintiff’s testimony that an oral contract had been entered into’ between himself and the .defendant. The exclusion of this evidence was, therefore, prejudicial to the defendant and constituted reversible error.

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

Seabuby and Bijub, JJ., concur.

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