Coons v. Chambers , 1 Abb. Pr. 165 ( 1854 )

Gardiner, J.

This action was' upon an agreement between these parties under seal. The subjects of it were, a patent, for . the territory of New York, for the making and vending of ' elevators, for the raising of muck, mortar, merchandise and other weights, and the construction of these machines by the plaintiff in pursuance of the specifications of the patent, and with such improvements as might be suggested, in the language of the agreement, by the inventive genius of the plaintiff. The main controversy between the parties relates to the meaning and true construction of the contract between them. The original agreement was dated November 30, 1849, and was executed by Coons only. “In connection with and addition to” this contract, as the instrument recites, another writing was indorsed on the original contract, containing provisions different from it in reference to the payment of the expenses to be incurred in the construction of the machines, which was executed by -both parties, but not under seal. The defendant gave in evidence a third instrument, signed and sealed by Coons, the plaintiff, bearing date January 17, 1850, purporting to be a receipt of “ twenty-five dollars, part of fifty dollars, named as funds which were to have been paid, on or before December 15, last.” The receipt contained a provision upon the) part of Coons, “ not to call for the remaining twenty-five dol-|t lars until after the completion of two of said machines named J in the annexed article, and to await the directions of the defendant, as to the third, until he should conclude upon the form.” The construction of those various instruments, containing distinct stipulations in reference to the same subject, depends essentially upon the order of time when they were ex- \ ecutecL If the writing indorsed in the original article was, as the plaintiff insists, made subsequent to January 17, the date of the receipt, it would annul or materially modify the stipulation of that instrument, instead of being controlled by them. This was a question of fact, which it is to be presumed that the referee has found in favor of the plaintiff; which is accordingly approved by the supreme court, in their opinion, and with which this court will not interfere. If the assumption is well founded, I can perceive no objection to the interpretation which the supreme court has given to the contract, as a whole.

But the case is here presented on a bill of exceptions, and upon the hearing before the referee, the plaintiff offered in evidence a letter from the defendant to the plaintiff, dated October 19, 1849, some time prior to the agreement upon which the plaintiff had counted in his complaint. It contains directions to the plaintiff, “ to use his best judgment in getting up the machines, and to do one at a time, and as cheap as practicable, and to pay for the work when completed,” &c.

This evidence was objected to, on the ground that it was anterior to the contract, and the objection was overruled by the referee, and his decision excepted to by the defendant. The evidence was clearly inadmissible. The merits of the controversy, so far as the opinion can be formed from the case befor'e us, would seem to be with the plaintiff. But upon a bill of exceptions I do not perceive any way in which the judgment can be sustained. It must be reversed, for the reason assigned, with costs to abide the event.