The plaintiff brought this action to recover the balance alleged to-be due upon a contract for furnishing brick to the defendants, the controversy arising over the freight, it being conceded that the defendants have paid the. agreed price for the brick. On the 27th of July, 1901, the defendants wrote the plaintiff as follows: “ Please give us quotation on your, best hard burnt common brick F. O. B.. cars Wardenclyffe, L. I., say about 175,000 to 200,000:” In reply to this letter the plaintiff, on the fifth of August, writing from Port: Jefferson, says: “The brick works at Wardenclyffe is shut. down for some time; nothing doing whatever. Will furnish you good hard merchantable Long Island brick at $6.15 per Hi F. O. B. cars, three days option.” On the sixth of August the defendants wrote-to the plaintiff, saying, among other things, “ Your letter of August-5th received naming price of $6.15 per-H. for the brick F. O. B. cars, we take it you mean F. O, B. cars Wardenclyffe, if this is so-we will require 125,000 at present.” The plaintiff offered these letters in evidence in support of his contract, and then offered, and was permitted to put in evidence, over the objection and exception of the defendants, to show that this contract, in so far as it related to the payment of freight, was modified by the defendants’ foreman,, who had charge of the work at Wardenclyffe. It can hardly be doubted that this was error; the contract between the parties was-expressed in writing, and aside from the fact that the evidence does-not support agency on the part of the defendants’ foreman, the-plaintiff could not- show a different contract between the parties-than that which he had proved by the writings offered in evidence. The defendants on the sixth of August wrote stating their understanding-of the offer. This letter was not answered. On the tenth of August the defendants wrote asking for a shipment of one carload of brick as a sample car, and on the thirteenth of August,, without making any suggestion that the plaintiff had any different, understanding of the contract than that suggested in the defendants’ letter of August sixth, the plaintiff wrote the defendants as follows: “ Your favor just at hand. I expect car load of brick at*291Wardenclyffe station this p. m. Surely to-morrow eve. You may expect prompt delivery all along until the final end.” It seems to us entirely clear that the correspondence sets forth a complete contract between the parties, and that it could not be varied or controlled by any alleged arrangement made between the plaintiff and the defendants’ foreman, who testifies that he was not authorized to act as the agent of the defendants.
The judgment should be reversed, with costs.
Goodrich, P. J., Jenks and Hooker, JJ., concurred; Hirschberg, J., concurred in memorandum,