Warth v. Brafman

Bryan, J., delivered the opinion of the Court. Apollonia Warth, executrix of Albin Warth, brought an action against Brafman et al., trading as A. Brafman & Sons. The verdict and judgment being against her, she has appealed. The cause of action was a contract relating to a machine for cutting out clothing alleged to have been made by Henry Warth, in the year eighteen hundred and ninety, as the agent of Albin Warth, who died in May, eighteen hundred and ninety-two.

The contract was not in writing. It may be stated in general terms that the contested question of fact in the case was whether the verbal contract embraced the terms of a written instrument, which was offered in evidence. Heniy Warth testified that it was based on ⁶⁷⁵ this writing, and that it embraced its terms. Max.

Brafman, one of the defendants, testified to the direct contrary. It is entirely unnecessary to state the details of the testimony, as we are concerned solely with a question of the admissibility of evidence, which is presented by the only exception taken at the trial. The cutting machine was set up at the place of business of the defendants. In the course of his testimony, Max.

Brafman testified that a few months afterwards he had a conversation with Albin Warth. The plaintiff objected to the admission of this conversation, but the Court admitted it in evidence, whereupon the plaintiff took an exception. The conversation was as follows : “I met Mr. Warth; I said, well, the machine is at work, how does it run, all right? But, I said, one thing don’t seem to be agreeable.

What is that? I said, your son wants a contract or agreement, or something of that character, signed, binding ourselves for seven years to carry the thing on, understand ? and that whether we have any use for it or not. I told him we didn’t propose to sign it; I told him so. He said, what is the use of you bothering about the matter ; whatever you do