#### Helen A. French, Respondent, *v.*Charles T. French and Louis French, Appellants.

(Supreme Court, Appellate Term,

March, 1912.)

Evidence — Parol evidence — Admissions — Admissibility as affected by mode of making admissions.

What furniture brings at public auction is no gauge of its market value.

Where a chattel mortgage upon household goods not only provides for the sale of the property at public auction but prescribes that it shall be sold in lots arranged by the mortgagor, parol evidence of an agreement preceding the mortgage, that the sale should be held at a certain auction room, is inadmissible as tending to vary the mortgage.

Appeal by defendants from a judgment of the City Court of the city of Mew York entered in favor of the plaintiff upon the verdict of a jury and also from an order denying a motion for a new trial.

*626George W. Glaze (Stillman F. Kneeland, of counsel), for appellants.

Studin & Sonnenberg (Charles H. Studin, of counsel), for respondent.

Butte, J.

This action was brought to recover damages sustained hy plaintiff for a loss alleged to have been caused by reason of a sale by defendants of certain household effects.

Prior- to March 17, 1902, the plaintiff, having her household effects stored in the Metropolitan Storage Warehouse on Sixty-sixth street near Columbus avenue, and finding heiself unable to pay-any but a small part of the accumulated storage charge,'applied to defendants for a loan of $900. On March seventeenth, two instruments in writing were executed (amounting to substantially a chattel mortgage), by the first of which plaintiff assigned to defendants the property in storage, and, by the other, the defendants, in consideration of the bill of sale, agreed to dispose of the property at public auction within sixty days, and to apply the proceeds to the repayment of their loan and to pay the balance to the plaintiff. This second agreement also contained the following clause: “ We also agree to sell the said property in the manner which the said' Helen A. French may desire, that is to say, the said property shall be sold by lots arranged by said Helen A. French.” On March nineteenth, -plaintiff signed a consent that the sale might take place any time before December 1, 1902, but, as there is no claim of liability in reference to the date of the sale, that may be disregarded.

. Plaintiff claims that it was orally arranged. between defendants and herself that the mortgaged property should be sold at Silo’s auction rooms on Fifth avenue and that it was actually sold at the Metropolitan Storage Warehouse, where according to the testimony of a man experienced in such matters, produced by her, it brought prices far lower than would have been .realized at a sale at Silo’s.

Defendants objected to the testimony, as to the oral agreement prior to -the written contract as incompetent under *627familiar rules; denied the making of even the oral agreement, and produced as witness, against plaintiff’s contentions^ Hr. Silo himself, from whose testimony it may fairly be gathered that, in his opinion, these particular household goods sold as advantageously at the warehouse as they would have at his own establishment.

It was further shown that some of the finer pieces of furniture, which were “ bought in ” by one of the defendants himself, were shortly thereafter resold at Silo’s and there brought prices in some instances but a fraction of what plaintiff’s expert testified would be realized at Silo’s, and, in some instances, considerably less than defendant had himself paid for them at the warehouse sale.

It may be said at the outset that the measure of damage, apparently acquiesced in by defendants, namely, the difference between the prices realized at the public sale at the warehouse and that which would have been realized at a public sale at Silo’s, is so far as I know unprecedented, and, to my mind, paradoxical. While a public sale properly conducted may be a guaranty of fairness and may afford the party for whose account it is held ample opportunity to protect his interests, it is not a gauge of market prices, as in its very nature it is not based upon any fixed value or valuation. Although, as said before, no objection was interposed by de-' fendants on the score of improper measure of damages, there still remains the grave question whether plaintiff has sustained the burden of proof of the vague issue of loss by reason of the alleged difference between actual and *possible*prices. Were it necessary to decide that point, I should be inclined to hold that she had not.

There is, however, a determinative question of law involved in the main appeal, namely, the competency of the testimony as to an oral agreement or understanding preceding the written agreements of March seventeenth. These agreements appear on their face to be complete and to comprise the entire arrangement- between the parties. The *subject-matier.*of the sale of the property is treated at length, and even a subdivision of this subject-matter, namely, the manner of the sale, is dealt with to the extent of prescribing that it shall *628be sold by lots arranged by plaintiff. Under such circumstances, the decisions are perfectly clear to the effect that oral testimony is inadmissible to vary the instrument or to limit or cut down the rights of the defendants thereunder or to add a new stipulation concerning “subject-matter” covered in the written agreement. Lese v. Lamprecht, 196 N. Y. 32, 36; Stowell v. Greenwich Ins. Co., 163 id. 298, 306; Seitz v. Brewers Refrigerating Machine Co., 141 U. S. 510.

The true rule is only emphasized by cases cited by respondent such as Bagley & Sewall Co. v. Saranac River Pulp & Paper Co., 135 N. Y. 626-629; Thomas v. Scutt, 127 id. 133-138, and Case v. Phoenix Bridge Co., 134 id. *78.*

Guy,' J., concurs; Seabuby, J., concurs in result.

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