#### Henry Corn, Appellant, *v.*Samuel Bergmann and David Turkel, Composing the Firm of Bergmann & Turkel, Respondents.

First Department,

June 2, 1911.

Evidence — landlord and tenant — offer to lease — varying written agreement by parol — agency — admissions of agent — cross-examination — contradicting witness on collateral matter.

Parol evidence is admissible to show that a muting was delivered under certain conditions which have not been complied with.

A writing addressed to the owner of a building and delivered 'to his agent whereby the'signers “lease" from him part of the building for a fixed term at an agreed rental, “the leases for same to be drawn in the usual " form employed by you and to be executed as soon as presented to us,” is merely an offer and does not become a binding contract until, accepted by the landlord.

"Where such offer does not specify any time within which .it is to be accepted by the landlord parol evidence is admissible to show that at the time it was made it was orally agreed -that if the lessees were not notified of its acceptance by a certain time it should be of no effect. ■ Such oral agreement does not vary the writing but is in the nature of a condition precedent to the existence of any contract.

Declarations of an agent aré not competent to charge his principal upon proof merely that the relation of principal and agent existed at the time they wére made.

Thus, where one who was the landlord’s agent to procure a lease of the premises, admits to a third party after the making of. the mitten offer and when he was not acting within the scope of his authority, that a parol agreement had also been made as claimed by the defendants, the admission is not binding on the landlord and it is error to admit it in evidence.

It is also error to permit a witness to be contradicted as to collateral matter brought out on cross-examination.

Where the agent testified on cross-examination that he had not seen a certain person since spring and did not know his address, it is error to permit that person to testify that he had seen the agent in the summer and given him his address.

Appeal by the .plaintiff, Henry Com, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 26th day of January, 1911, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 18th day of January, 1911, denying the plaintiff’s motion for a new trial made upon the minutes. • ' ■ '

*219
      *George Hahn,*for the appellant.

*William Henry Corbitt,*for the respondents.

McLaughlin, J.:

. On September 17, 1907, the plaintiff’s agent, one Kohn, went to the defendants’ place of business' for the purpose of leasing to them the fifth and sixth floors of a building owned by his principal, located at 32-36 West Eighteenth street, New York city. He had an interview with the defendants, at the conclusion of which they signed and delivered to him the following writing:

> “New York, *Sept. 11th,*190'T.

> “Mr. Henry Corn:

> “ Dear Sir.— We hereby lease from you the fifth and sixth floors in the building now being erected by you at 32, 34 and 36 West 18th Street, New York Oity, for the term of five years, beginning February 1st, 1908, at' the annual rental of $8,375 (Eight thousand three hundred and seventy-five dollars), the leases for same to he drawn in the usual form employed by you, and to be executed as soon as presented to us.

> “Yours truly,

> “SAMUEL BERGMANN.

> “D. TURKEL.”

Kohn then took the writing to the- plaintiff, who wrote at the bottom of it the words “Accepted, Henry Corn.” No notice of the acceptance was given to the defendants until the twentieth of September, when a lease was tendered to them, which they refused to execute, and they never did execute a lease, go into possession of the premises mentioned, or pay the rent. This action was brought to recover the damagés alleged to have been sustained by the plaintiff.

There have been two trials. On the first the complaint was dismissed on the ground that the writing was insufficient to take the case out of the Statute of Frauds, but on appeal the judgment was reversed and a new trial ordered. *(Corn*v. *Bergmann,*138 App. Div. 260.) Oh the last trial the defendants had a verdict and the plaintiff again appeals,, claiming that the judgment should be reversed for errors in the admission of evidence. One of the errors alleged is that testimony *220was.admitted, against the plaintiffs objection, tending to show that when the writing was delivered tó Kohn he stated it was understood it was an offer only, which might be accepted' or rejected by the plaintiff and before he came to a conclusion he would have to look up the defendants’ references; that the defendants then stated to° Kohn that they must know by the .nineteenth of September whether the offer were accepted-and Kohn then said he would let them know by noon of the nineteenth; that if he did not do so “the deal will be off altogether;” that not having been informed on the nineteenth of the plaintiff’s acceptance, they thereafter refused to execute a lease. It is urged' the court eri;ed in receiving testimony to this effect because it tended to modify and change a written contract, that is, the written offer.

I am of the opinion that the testimony was admissible. The writing, at most, was but an offer and did not become a binding contract until accepted by the plaintiff. The provision in the writing that “ the leases for same to be 3⁄8 3⁄8 * executed as soon as presented to us ” gave the plaintiff a reasonable time within which to present the leases, but the writing itself did not specify any time within which the plaintiff had to accept the offer; therefore, that could be supplied by parol. *(Thomas*v. *Scutt,*127 N. Y. 133; *Brigg*v. *Hilton,*99 id. 517; *Eagle Iron Works*v. *Farley,*83 App. Div. 82; affd., 178 N. Y. 595.) Defendants had a right to prove that at the time the offer was given it was orally agreed that if not accepted by a certain time it should be of no effect. Such agreement did not vary the writing; on the contrary, it was in the nature of a condition precedent to there being any contract at all. If this agreement were made — and the jury found it was — then the minds of the parties never met upon the subject of a lease, because the condition was not complied with. Parol evidence tending tó show that a writing is delivered under certain conditions which have not been complied with, is admissible. *(Higgins*v. *Ridgway,*153 K. Y. 130; *Reynolds*v. *Robinson,*110 id. 654; *Juilliard*v. *Chaffee,*92 id. 535; *Bookstaver*v. *Jayne,*60 id. 146; *Benton*v. *Martin,*52 id. 570.)

The *Benton*case is cited with approval in the *Higgins*case, Judge Maetin, who delivered the opinion, saying that case held *221“That instruments not under seal may he delivered to one to whom they are payable upon conditions, the observance of which is essential to their validity; that the annexing of such conditions to the delivery is not an oral contradiction of the written obligation; that, as it needs a delivery to make an obligation operative, the effect of it and the extent to which the instrument is to become operative may he limited by the condition attending its delivery. 3⁄8 3⁄8 3⁄8.”

In the *Bookstaver*case it was held that any instrument not under seal may he delivered upon conditions, the observance of which between the parties is essential to its validity.

The defendants, therefore, within the rule laid down within these authorities, and many others that might he cited to the same effect, had the right when they delivered the writing to Kohn to attach to such delivery a condition that they must be notified by twelve o’clock on the nineteenth — otherwise the offer would be ineffectual. The court, therefore, did not err in admitting testimony to.show such oral agreement.

I am, however, of the opinion that the court did err in permitting defendants’ witness Hornstein, the broker who introduced Kohn to the defendants, and who was present at the interview referred to, to testify that he had a conversation with Kohn on the twentieth of September, when Kohn informed him that the defendants would not execute a lease-because he (Kohn) had not presented the lease or notified them of plaintiff’s acceptance on the nineteenth;, that Hornstein then said to Kohn, “You agreed to go yesterday; why didn’t you go ? ” to which Kohn replied, “ I was in court all day.” This testimony was introduced evidently for the purpose of supporting defendants’ version of the transaction that they were to be notified of the acceptance on the nineteenth. Obviously, it was incompetent as an admission against the plaintiff. Kohn was plaintiff’s agent to procúre a lease and when he made the admission referred to he clearly was not acting within the scope of his authority. His admission could not, therefore, bind the plaintiff

In *Goetz*v. *Metropolitan Street R. Co.*(54 App. Div. 365) it is said that “Declarations of an agent are not competent to charge a principal upon proof merely that the relation of principal and agent existed at the time when the declarations were *222made. Something more must be shown. *‘It*must further appear that the agent, at the time the declarations were made, was engaged in executing the authority conferred upon him, and that the declarations related to and were connected with the business then depending, so that they constituted a part of the *res gestee.*’ ” '

Here Kohn denied that the writing was delivered with any conditions or that any oral agreement was made.. The'testimony of Hornstein that Kohn made the admission to which he testified was erroneously admitted and the jury may have relied upon that in determining. whether the; oral agreement was made.

I also think the court erred in permitting Hornstein to contradict Kohn as to a collateral matter brought out on the latter’s cross-examination. Kohn testified cin cross-examination that he had made an attempt prior to. the trial to subpoena Hornstein as a witness, but was unable to do so because he did not know his address; that-' he had seen him, some time during the preceding spring, but had not spoken to him, and that he did not at that time know where to locate him. Hornstein was then permitted to testify that when Kohn saw him was not in the spring, hut in the summer; that they conversed together, and that he said to Kohn, “You had better put down my. address, where you can find me if you want to; ” that Kohn did so and then Hornstein said,- “ My office is right on the other corner. ” This testimony was introduced solely for the purpose of attacking the credibility of Kohn. It had no connection whatever with the issue being tried, and the only effect of it was to contradict Kohn upon a collateral matter elicited upon his cross-examination. It was, therefore, inadmissible.

In *Lumley*v. *Torsiello*(69 App. Div. 76) this court said, in speaking of evidence offered merely to contradict a statement of a witness upon a collateral matter brought out oil cross-examination : “ It is true'that she testified that she had never written these letters to the defendant; that she had never written to him at all, but this testimony was drawn out by the defendant upon the plaintiff’s cross-examination and was purely a collateral fact, having no relation to the transaction upon which the cause of action was based, and the defendant was not entitled to ask *223the plaintiff upon cross-examination as to such a collateral fact, and then introduce evidence tending to show that her statements were not true, for the purpose of .contradicting her or impeaching her.” (See, also, *Potter*v. *Browne,*197 N. Y. 288.)

The judgment and order appealed from, therefore, are reversed and a new trial ordered, with costs to appellant to abide event.

Ingraham, P. J., -Laughlin, Clarke and Scott, JJ., concurred.

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