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(182 N.Y.S.) if the matters of difference between them were not adjusted in the irterim. The fair and reasonable construction of his testimony is, I think, that in giving the notes he reserved his claims against the payee. If he had not so reserved them, it might have been claimed that he bad waived them. That, in my opinion, is all that he intended to guard against. He could have taken up the notes at maturity, when he found that they had been negotiated, and could then have brought action against the payee for the difference between what he had paid for the work and the amount with which he should have been charged therefor. He knew that the payee insisted upon having the notes to reimburse it for its disbursements under the contract, and he knew that the only manner in which it could obtain reimbursement by the notes was by discounting them pending the adjustment of his claims for reductions in the charges for the work.

This construction of the defendant's testimony brings the case within the authority of Pratt & Whitney Co. v. Pneumatic Tool Co., supra, and also within the authority of Tradesmen's National Bank v. Curtis et al., 167 N. Y. 194, 60 N. E. 429, 52 L. R. A. 430, where a time draft for coal to be delivered was accepted on the agreement of the drawer to deliver the coal before the draft became payable, and to take up the draft if the coal should not be so delivered. The plaintiff, with full knowledge of the agreement, discounted the draft without knowledge that the drawer had failed to deliver the coal. It was held that the plaintiff could recover, and that the drawer's promise to deliver the coal was a sufficient consideration for the draft, even though he failed to perform the agreement, and that the prior discount by the drawer of like drafts, which was known to the acceptor, was sufficient to show that he knew that it might be negotiated. To the same effect is Davis v. McCready, 17 N. Y. 230, 72 Am. Dec. 461, where an accepted time draft for work to be performed, discounted by plaintiff before maturity with knowledge that it was given under an executory contract for work to be performed, but without knowledge of a breach of the contract, was held enforceable; and it was also held that the plaintiff was under no obligation to inquire with respect to the performance of the work, even though such inquiry would have disclosed that the contract had been breached before the draft was discounted, and that the acceptor must be deemed to have relied on the agreement for performance for his indemnity.

I deem it very doubtful whether the judgment could be sustained on the findings as made; but I think several findings are based on an erroneous construction of the testimony of the defendant. I am of opinion, therefore, that the judgment should be reversed, with costs to the appellant, and the findings of fact and conclusions of law inconsistent with these views should be reversed, and that the findings with respect to the cost of the performance of the contract work should be reversed as immaterial, and findings and conclusions in accordance herewith made, and awarding judgment in favor of the plaintiff for the entire amount of the notes, together with interest thereon, and costs.

L. R. LUNCH & RESTAURANT CO., Inc., v. ZUSMAN et al. (Supreme Court, Appellate Term, First Department. June 24, 1920.) Corporations F458—Offer to transfer stock of seller corporation held a breach of contract to deliver bill of sale to its property.

Seller of restaurant, with fixtures, etc., under contract requiring delivery of bill of sale on certain date, could not recover for buyer's refusal to consummate the sale, on the seller's offer of the stock of its corporation as a performance of the contract; the offer to transfer the stock being a breach of the seller's contract to deliver the bill of sale.

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Appeal from Municipal Court, Borough of Manhattan, Second District.

Action by the L. R. Lunch & Restaurant Company, Incorporated, against George M. Zusman and another. From a judgment for plaintiff, and from an order denying a motion to set aside the verdict and for a new trial, defendants appeal. Reversed, complaint dismissed, and niew trial of defendants' counterclaim granted.

Argued June term, 1920, before BIJUR, DELEHANTY, and WAGNER, JJ.

Reuben Dorfman, of New York City, for appellants.

Kunstler & Cohen (George Cohen, of New York City, on the brief), for respondent.

PER CURIAM. The plaintiff agreed in writing to sell to the defendants"the restaurant, fixtures, and all other things contained in the restaurant and business aforementioned, together with the lease to said premises, for the sum of ($27,000) twenty-seven thousand dollars, to be paid in the following man. ner: Six hundred ($600) dollars at the time of execution of these presents," etc. "It is further agreed by and between the parties hereto that the bill of sale shall be delivered by the parties of the second part on or about Saturday, the 21st day of February, 1920," etc.

The defendants made the initial payment of $600 as required by the contract of sale. When the parties met to close the sale, the plaintiff offered the stock of its corporation to defendants as a performance of the contract. The defendants asked permission to examine the minutes and other records of the plaintiff corporation, and on the following day rejected the offer. At the end of the case, upon motion, the court directed a verdict in favor of plaintiff for the full amount claimed, and also dismissed defendants' counterclaim. This was error. The offer of plaintiff to transfer its certificate of stock was a breach of its agreement. That being the sole evidence of its attempted performance, the complaint should have been dismissed. It follows, of course, that defendants should have been permitted to prove by way of counterclaim any damages they suffered by reason of plaintiff's breach.

The judgment is reversed, with costs to appellant, and complaint disinissed, with costs, and new trial granted of the counterclaim.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(182 N.Y.S.)

UNITED STEEL & METAL CORPORATION v. CATEVENIS. (Supreme Court, Appellate Term, First Department. June 16, 1920.) 1. Customs and usages On 17Custom inadmissible to vary terms of sale con

tract.

In seller's action for buyer's breach in refusing to accept 200 cases coke tin plate, where defendant's evidence tended to show that the goods tendered contained a large proportion of defective plates, evidence offered by plaintiff to the effect that there was a custom in the trade that "a box of primes" might contain 10 per cent. of “wasters," namely, sheets of second and defective quality, was incompetent to vary the express terms of the contract, which provided that each case should consist of "112 sheets,

primes." 2. Appeal and error em 231 (3)-General objection to evidence sufficient, where

evidence in any event incompetent.

A general objection to evidence, which was admitted over such objection, was sufficient to warrant a reversal, where the testimony was in any

event incompetent. Appeal from City Court of New York, Trial Term.

Action by the United Steel & Metal Corporation against Crist E. Catevenis, sued as Charles E. Catevenis. From a judgment for plaintiff, entered upon the verdict of a jury, defendant appeals. Reversed, and new trial granted.

Argued June term, 1920, before BIJUR, DELEHANTY, and WAGNER, JJ.

Prince & Nathan, of New York City (Sidney J. Loeb, of New York City, of counsel), for appellant.

Goldman & Unger, of New York City (William F. Unger, of New York City, and Samuel Rubin, of Brooklyn, of counsel), for respondent.

BIJUR, J. This is an action for damages for breach of contract on the part of defendant in refusing to accept and pay for certain goods alleged by plaintiff to have been sold by it. On December 4, 1918, defendant wrote plaintiff a letter, requesting plaintiff to enter defendant's order for 200 cases coke tin plate as below:

“100 cases 14x20–112 sheets primes, 107 lbs. each case, at $10.15 per case. 100 cases 20x28–56 sheets primes, 107 lbs. each case, at $10.15 per case" —and specifying some additional details. On December 6th plaintiff wrote to defendant, thanking him for the order, and informing him that the same had been entered “on conditions as stipulated below and printed on the back of this sheet.” The conditions referred to covered some five printed pages of the record on appeal and were entirely apart from and beyond anything that had even been suggested by the defendant.

Had the record stopped there, it would be quite clear on familiar principles that the minds of the parties had not met, and that therefore no contract was established. On December 10th, however, the defendant wrote to the plaintiff : "We have your acknowledgment of December 6th

for the order which we placed with you on December 4th for 200 cases," etc.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

From this letter, and the subsequent correspondence of the parties, admitted without objection, it is quite evident that defendant accepted the two letters as constituting the contract and conceded the additional terms proposed by the plaintiff.

[1, 2] Plaintiff offered evidence, which was admitted over the general objection of defendant, to the effect that there was a custom in the trade that "a box of primes” might contain 10 per cent. of "wasters,” namely, sheets of second and defective quality. I think it quite clear that this testimony was incompetent to vary the express and unambiguous terms of the contract, to wit, that each case should consist of “112 sheets primes.” Hopper v. Sage, 112 N. Y. 530, 535, 20 N. E. 350, 8 Am. St. Rep. 771. The respondent recognizes the seriousness of this point and endeavors to meet it by the claim that the contract calls for only “200 cases"; but that description is taken from the plaintiff's letter of December 6th, and not from defendant's of December 4th, which reads, "112 sheets primes

* each case," and which, by the very premise of the existence of a contract, was part of the whole agreement. The objection taken by defendant to the admission of this evidence, and its consequent submission to the jury, though general, is sufficient to warrant a reversal of the judgment, because the testimony was in any event incompetent. Tooley v. Bacon, 70 N. Y. 34, 37.

There was ample testimony to the effect that the goods tendered to defendant contained a large proportion of defective plates. The question of the existence of the "custom" referred to was an integral and necessarily vital factor in the jury's verdict.

The judgment must therefore be reversed, and new trial granted, with costs to appellant to abide the event. All concur.

*

WOODRUFF v. BENESCH et al. (Supreme Court, Appellate Term, First Department. June 16, 1920.) Evidence em 148_Speaker over telephone identifiable by voice and discussion

of personal affairs.

To render testimony of a telephone conversation competent, the witness may identify the speaker by his voice, and also by the manner in which

he discussed intimate details of personal business affairs. Appeal from City Court of New York, Trial Term.

Action by Stanley R. Woodruff against Adolph Benesch and another, copartners, etc. From a judgment for plaintiff, rendered on the verdict of a jury, defendants appeal. Reversed, and new trial ordered.

Argued June term, 1920, before BIJUR, DELEHANTY, and WAGNER, JJ.

Jesse S. Epstein, of New York City (Arthur J. Brothers, of New York City, of counsel), for appellants.

Chester Mayer, of New York City (Edward U. Roth, of New York City, of counsel), for respondent.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

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(182 N.Y.S.) DELEHANTY, J. The vital issue herein arises out of a purchase by defendants (stockbrokers) for plaintiff's account of 225 shares of the Penn-Virginia Coal & Coke Company. The plaintiff claims that such purchase was unauthorized; defendants contending that plaintiff's order to purchase said stock was given by him over the phone to one Thompson, their New York office manager. To prove this defendant called as a witness the said Thompson, who was interrogated and answered as follows:

"Q. Do you know Dr. Woodruff, the plaintiff in this case? A. No, sir; not until this morning. I never met him until this morning.

"Q. Did you ever have any telephone conversation with Dr. Woodruff ? A. I did.

"Q. How do you know that you were speaking to Dr. Woodruff on the telephone? A. By having talked with him several times on familiar subjects of bis account; matters that he would and I would know more intimately than anybody else.

"Q. Well, on or about November 21, 1918, did you phone to Dr. Woodruff at his home? A. On November 20th 1 telephoned him.

"Q. And did some one answer the wire? A. Yes, sir. "Q. And what did they say as to their identity? A. They said, 'This is Dr. Woodruff.'

"Q. Have you heard the plaintiff's testimony to-day? A. I have.

"Q. And do you recall the voice over the telephone, as compared with his voice to-day? A. I do.

"Q. And are they the same voice? A. They are.

"Q. Now will you tell us what conversation you had with Dr. Woodruff on November 20, 1918?

"Mr. Mayer: I object to the testimony, on the ground that it is incompetent, and an improper identification."

The objection was sustained and excepted to. The intent of this proof was to establish that in this conversation plaintiff had instructed Thompson to sell certain other shares of stock held by defendants in plaintiff's account, and with the proceeds thereof to purchase the Penn-Virginia Coal & Coke Company stock referred to. As this offer of testimony went to the very crux of the case, it is quite apparent that, if improperly excluded, a reversible error has been committed. Chamberlayne, in his work on Evidence, at page 174c, states the general rule regarding the admissibility of telephone conversations as follows:

“A witness who testifies to a conversation conducted by means of a telephone may properly identify the speaker at the other end by means of his voice. Identification need not, however, take place in this way. The person in question may be entirely unacquainted with the voice of the one to whom he is speaking. The identification may come later. A conversation by telephone is admissible in evidence, when from all the circumstances the identity of the person answering the telephone is established with reasonable certainty and recognition of the voice or identity by admission of the person is not necessarily required. The fact that communication is being held with a person's office or place of business has an important bearing in this respect, as tending to show that the person answering was the man in charge of the business there being conducted or authorized to represent the latter."

This rule has been followed in this state in the recent case of Mankes v. Fishman (3d Dept.) 163 App. Div. 789, 149 N. Y. Supp. 228, which holds that one who has held a conversation by telephone with another, stated to have been defendant cannot testify, as to what that person

182 N.Y.S.-56

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