Opinion
April, 1894.
Wm. H. Arnoux, for appellant.
Phillips Avery, for respondent.
The plaintiff alleges that Joseph Campbell approved of the contract and of the materials and labor furnished and performed by it, and this was denied by defendant. It was conceded that the goods and work complied with the contract, and it is a fair inference from the evidence in the case that Joseph Campbell saw the work and approved of it. He was the brother of one of the firm of builders, Phyfe Campbell, who were erecting the houses. He was a kind of "boss around, foreman or something," according to the testimony of the witnesses. According to the testimony of defendant's witness, George T. Arnoux, who was the brother of the defendant and the bookkeeper of Phyfe, Joseph Campbell approved of bills if he, Arnoux, said it was all right; and Joseph Campbell was at the building about every day. Joseph Campbell swears that he never saw these ranges go into this defendant's property, but it appears from defendant's own testimony that Campbell knew that defendant had entered into the contract, for they conversed about the ranges at that time; also, that the general course was that Campbell would look at the work and bring the approvals to the defendant, or else deliver them to the party. It also appeared that after the work was done, the plaintiff's agent, the defendant, Mr. Phyfe and Joseph Campbell met in defendant's office; that the plaintiff's agent came there to get the approval from Joseph Campbell, and the latter, at the suggestion of defendant, agreed to meet the parties the next morning at nine o'clock, but never came.
Approval, like consent, may be expressed, or may be implied from the conduct of the party, and it may be tacit. It was established by defendant's own testimony that Campbell knew of the contract. If he disapproved of it, it was easy for defendant to say so, and being silent upon that point we must deem it established that Campbell approved of the purchase of the goods and of defendant's agreement to pay for them. From the other evidence in the case the jury might fairly infer that Campbell saw the goods and work and approved of both. He made no particular personal investigation for himself, but relied upon George T. Arnoux' approval; he was at the building every day, and he made an appointment with the plaintiff's agent to meet him there and examine the work. His failure then, or at any time, to intimate the slightest disapproval warranted the jury in finding that he did approve. The allegations of the complaint were, therefore, sustained.
The defendant claims, however, that the approval of Campbell was to be in writing, and offered to show that the conversation between him and the plaintiff's agent, at the time he signed his agreement to pay, established that fact. The defendant's evidence on that point was excluded, and we think properly, as it tended to vary the written agreement. The defendant drew up his stipulation, and must be deemed to have inserted in it all that was material. Whatever in the conversation which had been testified to by plaintiff's agent implied an approval in writing is wholly immaterial, since defendant had not chosen to make a stipulation for a writing a part of his agreement. He inserted the sole condition upon which he agreed to pay. To add any other, or further, condition is to alter his own contract. There are cases where the contract of one party is in writing and the contract of the other party rests in parol and may be proved by parol. Routledge v. Worthington Co., 119 N.Y. 592-596. But where the writing assumes to give the whole contract between the parties it cannot be varied by parol evidence offered on the part of the person who subscribed it. Gerard v. Cowperthwait, 2 Misc. 371; 21 N.Y.S. 1092.
In this case the defendant wrote out the whole contract as he wished it to appear at the time, and no further stipulation can be added to it. Nor is there any ambiguity in the writing. It means but one thing: that Joseph Campbell must approve. Whether his approval is to be evidenced by a writing or not is not a question arising upon the language of the instrument. The contract is not ambiguous because it failed to state by what evidence the party was to prove compliance with the condition.
Ground for reversal is alleged in the error of the trial judge in submitting to the jury to say "was there such an approval as would be necessary in order that the plaintiff may obtain a verdict." No exception to this statement is in the case, and we, therefore, cannot reverse for the error. That there was no exception is doubtless because the expression which the judge used was inadvertent and made no impression at the time upon counsel or jury from the fact that he had previously charged the jury that they were to determine from the evidence whether Joseph Campbell had approved or not. Had his attention been called to the matter he would have had an opportunity to correct the expression.
None of the exceptions taken by defendant require a reversal. The motions to dismiss were properly denied because there was express evidence of Joseph Campbell's approval of defendant's contract and evidence from which his approval of the work might fairly be inferred. It appeared from the testimony of defendant's witness, Joseph Campbell, that a demand for the approval of the ranges was made on him when he came into court the morning of the trial. No objection to this testimony was offered by defendant, nor does it appear that it was drawn out for the purpose of fixing thereby liability on defendant. The latter, however, asked the judge to charge that it was not a proper demand, and, if it was the only demand made on Joseph Campbell, the jury must render a verdict for the defendant. This was declined and defendant excepted. The request could not have been granted. A demand upon Joseph Campbell for approval was not essential to plaintiff's recovery. It was only necessary for it to show that Campbell had approved.
We do not consider that the other exceptions alluded to in appellant's brief point out errors for which the judgment should be reversed. The defendant complains of the instruction given at plaintiff's request just before the jury retired, that if the demand was made of Joseph Campbell and he agreed to go to the buildings to examine the work, his neglect to do so was unreasonable, and the jury must find for the plaintiff; and two subsequent instructions on the same subject. The question of unreasonable refusal to approve was not the issue presented by the pleadings. Plaintiff insists that the complaint was amended to conform to the proof in the case. It appears that after the denial of the defendant's first motion to dismiss the complaint the court said: "The pleadings, if necessary, to be amended to conform to the proof." Defendant denies that any amendment was actually made, in which we agree with him; for plaintiff did not then nor subsequently ask for any; and so no error was committed by which there was a substitution of a new cause of action. But at the close of the whole case the defendant treated this new cause of action as in the case, for he added to his former grounds of motion for a dismissal: "Fifth. That no reasonable effort has been made by plaintiff to obtain the approval of Joseph Campbell;" and subsequently by his own requests for instructions had that issue submitted to the jury; so that if there was another and irrelevant issue left to them, or if the cause was tried upon a wrong theory, as defendant now claims, or upon inconsistent theories, he is as much to blame as the plaintiff, for he first injected the irrelevant issue into the case. We affirm the judgment because we find sufficient evidence to sustain the verdict upon the ground that Joseph Campbell approved; and if the issue were as to his unreasonable refusal to give an express approval in writing, or otherwise, the plaintiff must be deemed to have sustained the affirmative by a preponderance of evidence.
The judgment and order should be affirmed.
BISCHOFF and PRYOR, JJ., concur.
Judgment and order affirmed, with costs.