Opinion
June 28, 1907.
Richard Krause, for the appellant.
George W. Olvany, for the respondent.
This action was brought to recover a balance alleged to be due and unpaid upon a contract for laying an asbestos-granite floor and the bottoms of two window seats in defendant's place of business. The plaintiff is a manufacturer and layer of what is known as "Asbestos-Granite" floors, which are composed of calcined magnesite mixed with chloride of magnesia by a secret process, forming a cement which sets after being laid, and becomes waterproof. One John F. Robert Troeger was engaged in the business of decorating and frescoing mosaic floors, etc. He was not in the employ of plaintiff, but sometimes received orders for cement floors, and had an arrangement with plaintiff whereby the latter would pay him a commission on all orders he might receive and turn over to plaintiff. About the 20th of August, 1906, Troeger was informed that the defendant wanted a floor in his cafe, and called upon him to secure the work. In the conversation between them, and in answer to questions asked by defendant, Troeger stated that the floor would wear as long as the defendant was in business; that the colors were permanent and would not fade, and that he would polish the floor after it was laid. The defendant selected colors, and on August twenty-ninth Troeger procured from plaintiff the following paper:
" August 28 th, 1906.
"JAMES CARROLL, Esq., "651 West 42nd Street, N.Y. City:
"DEAR SIR. — We propose to furnish and lay with our `ASBESTOS-GRANITE' floor, your CAFE, at the above address, also the two windows, for the sum of Two hundred and twenty-five dollars (225).
"Thanking you very much for the order, "We remain, "Yours very truly, "ASBESTOS PRODUCTS CO. "by F. McKEIGE, " Manager. "I hereby accept the above proposal. "OWNER."
He took this paper to the defendant, who signed the acceptance Between September ninth and fourteenth following, the floor was laid and other work done, and about September twenty-first defendant paid fifty dollars to apply on the contract, which is the only payment he has made.
Upon the trial plaintiff introduced in evidence the written instrument, proved that the floor and window bottoms were laid with asbestos-granite in bordered panels, and the failure of defendant to pay, and rested. The defendant was then permitted to prove, over the plaintiff's objection and exception, the conversation had with Troeger before and at the time the contract was signed, that the floor was not polished and that the colors were not permanent. The exceptions taken to the admission of this evidence we think present reversible error. ( Eighmie v. Taylor, 98 N.Y. 288.) The writing appears, upon inspection, to be a complete contract embracing all the particulars necessary to make a perfect agreement, designed to express the whole arrangement between the parties, which excludes it from the operation of the rule permitting parol evidence consistent with and not contradictory of the written instrument, where the contract rests partly in writing and partly in parol. ( Thomas v. Scutt, 127 N.Y. 133; Phelps v. Gamewell Fire Alarm Tel. Co., 72 Hun, 26; Coleman v. Rung, 10 Misc. Rep. 456; Gormully Jeffery Mfg. Co. v. Gross, 25 id. 336.) Under its provisions the kind of a floor to be laid is specified; and while there was added to the instrument the implication that such floor would be suitable and proper for the purpose for which it was intended to be used, it was laid with the material agreed to be used, and there is no proof that it was not a suitable and proper floor other than that afforded by the soft condition of a small portion back of the bar, and the record fails to disclose that this condition was due to improper material or workmanship. Inasmuch as this condition is shown to be caused by the failure of the cement to set at that point, while in all other parts of the room it did, the evidence that drip from the connecting beer pipes, there located, prevented the hardening of the cement and resulted in the soft condition complained of, is fairly established, and, in addition, the case is barren of any evidence showing the defendant to have sustained damage by reason thereof, which would authorize or permit him to recoup. He failed to prove the value of the floor as it was or as it would have been had the cement at that point hardened, and the omission of such evidence precluded his recouping any damage by reason of the defect, if the plaintiff was responsible for it. (30 Am. Eng. Ency. of Law [2d ed.], 231; Hooper v. Story, 155 N.Y. 171.)
The conversation between defendant and Troeger preceding the preparation of the contract was not admissible because of the absence of any evidence that the latter had any authority to make contracts or give warranties which would bind the plaintiff. It appears without contradiction that his only relations with plaintiff rest upon the latter's agreement that he would pay Troeger a commission for all work he brought to him. That he had no authority to make a contract for plaintiff is evidenced by the conceded fact that after talking the matter over with defendant he told him he would have to go to the plaintiff for the contract, which he did, and the plaintiff and not Troeger signed it.
A commission allowed to one who solicits orders, upon sales effected through such orders, does not constitute or prove the solicitor to be an agent of the seller, with authority to make absolute contracts of sale. ( Clough v. Whitcomb, 105 Mass. 482; Cafre v. Lockwood, 22 App. Div. 11; Ellner v. Priestley, 39 Misc. Rep. 535.) There is no evidence that plaintiff was ever informed or knew of the conversation referred to, of the promise to polish the floor, or warranty as to the permanency of the colors to be used, which precludes the contention of ratification. ( Smith v. Tracy, 36 N.Y. 79.) Had Troeger possessed authority to bind the plaintiff this evidence would not have been admissible as an independent collateral warranty, for it is not pleaded as such.
Without considering the other question presented we think the judgment of the Municipal Court must be reversed and a new trial ordered, costs to abide the event.
WOODWARD, JENKS, HOOKER and GAYNOR, JJ., concurred.
Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.