American Historical Soc., Inc. v. Gross

WESTERFIELD, Judge.

The American Historical Society, Inc., a New York Corporation, entered into two contracts with the defendant, Mrs. Josiah Gross, under one of which, dated December 17, 1929, she subscribed for a copy of “Encyclopedia of American Biography” published by the plaintiff, and, under the other, she agreed to pay $150 for a copperplate engraving of her late husband, Josiah Gross, for the purpose of having it reproduced in the encyclopedia. Defendant failed to pay anything on either of the contracts, and this suit resulted.

In her answer defendant admitted owing $35 on the first contract, but denied that anything was due under the second, for the reason that, subsequent to its execution, a verbal agreement was entered into with an agent of plaintiff, whereby it was stipulated that, in consideration of the defendant furnishing a copperplate which she had in her possession, the contract would be abrogated.

There was judgment below for $35, and plaintiff has appealed.

The sole issue before us, a question of fact, is whether there was a verbal agreement as claimed by the defendant, for plaintiff denies it. It is admitted that the defendant furnished plaintiff with a copperplate engraving which had been used in a former publication carrying her husband’s portrait, but it has been proven by the testimony of the plaintiff’s witnesses that the defendant’s engraving was merely used for the purpose of preparing another one of a different size, and it is conceded that the picture appearing in the publication of plaintiff is, larger than the plate furnished by defendant. There is also evidence to the, effect that proofs of the new copperplate were submitted to defendant, who did not deny their receipt. Moreover, on the reverse of the original contract dated February 11, 1930, • there is, under the date of June 18, 1931, the following legend over the defendant’s signature: “Will pay this on installments as fast as I can beginning in fall.”

An agent of the plaintiff testified that Mrs. Gross signed that indorsement after the plate had been made and delivered to her, and when he called upon her for payment of the $150.

Under the circumstances, we believe the evidence clearly preponderates in favor of the plaintiff, and conclude that there was no verbal agreement modifying or abrogating the terms of the original contract.

Consequently, for the reasons assigned, the judgment appealed from is amended by increasing the amount awarded plaintiff to $185, and that, as thus amended, it is affirmed. Costs of both courts to be paid by defendant.

Amended and affirmed.