William Ottman Co. v. Martin , 38 N.Y.S. 966 ( 1896 )

Van Wyck, Ch. J.

This action is for meat sold in September, 1892, and there was no dispute as to the quality, quantity or price thereof, but the sole issue was whether the same was bought by defendant individually or for :the hotel corporation of which he was the president. The plaintiff contending that the original conversation between himself and defendant, at the-time the first order for meat was given in June, 1892, was that defendant said he bought for himself, while defendant testified that he told plaintiff he bought for the Green' Mountain Hotel Company,. of which he>. was president. These were the only witnesses as to that conversation, and there is no proof of any other conversation, although plaintiff continued to ship meat during June, July, August and. September, and all of which was paid for except the September account, which is herein sued for. The defendant had marked in evidence four checks, aggregating $1,640, signed by him “ H. W. Martin, Pres.” to order of and indorsed by plaintiff and which were payments on the accounts other than the September account. He made proper effort to prove that the designation “ Pres.” indicated president of the Hotel Company, but upon plaintiff’s objection ,was prevented from doing so by ruling of the court, to which he excepted. This was. error. 1 Wall. 240. The plaintiff had marked in evidence several letters written since September and signed by defendant “ H. W. Martin,” with no official designation, for the purpose of showing admissions by defendant of his personal liability. The relations of the parties had been fixed long before these letters were written, and defendant sought to explain these subsequent and seeming admissions of personal liability, and by his counsel was asked to explain why he had omitted his official' designation from his signatures to the letters, but was silenced upon plaintiff’s objection that “ the letter speaks for itself,” to which he excepted. Letters, when they form no part of the contract and are written subsequent to the making thereof, are not written instruments in the sense that parol evidence is inadmissible to explain seeming admissions therein of liability.

A plaintiff, on a plea of payment by defendant, is not estopped by his receipt of payment in full of his claim, nor would such defendant be estopped by Ms subsequently-written admission that no part thereof had been paid, but the first' could still make proof of nonpayment, arid the other of payment; and thus make an-issue for the jury to determine. The judgment and order are reversed and new trial granted,- with costs to appellant to abide tlie event.

Fitzsimohs and McCarthy, JJ., concur.

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