Action, to recover $2,500, alleged to be due plaintiff for. services rendered the defendant. The complaint states two causes of action —- one on an express contract to pay the plaintiff a commission of one per cent on all sales, made by him and one Keller during the time stated, with a guaranty that plaintiff’s compensation should be not less than $7,500 each year; the other on a quantum meruit *387alleging that the services rendered were reasonably worth $15,000, and that he had only been paid $12,500, leaving a balance due of $2,500, for which judgment was demanded.
The answer put in issue the material allegations of the complaint and alleged payment, accord and satisfaction, and that the agreement referred to in the first cause of action was void under the Statute of Frauds.
At the trial the rendition of the services was not disputed,.the main question litigated being how much the defendant agreed to pay therefor. The plaintiff testified that he had an oral agreement by the terms of which he and another salesman named Keller were to have two per cent commission— divided equally between them — on all sales over $500,000, and the defendant guaranteed he should receive not less than $7,500 a year; that sometime after he entered the defendant’s employ John H. Eagle-told him that Keller wanted a written contract; that they would not guarantee to pay him over $5,0.00 a year, plus a certain commission, and for the .purpose of inducing him to sign such contract he wanted the plaintiff to also join in it; and that if he would do so the fact that he was therein only guaranteed a salary of $5,000, plus a certain commission, would have no effect whatever on their previous parol agreement by which defendant had guaranteed lie should receive not less than $7,500; that the plaintiff thereupon signed the agreement and each month thereafter was paid $416.67, making the $5,000 a year specified in the contract; that at the end of the first year Keller and the -plaintiff were each paid $1,100, commissions earned, and the plaintiff received a check drawn to the. order of J. H. Eagle, and indorsed by him for $1,400, making the total amount received $7,500; that the second year no commissions were earned and the defendant refused to pay any sum in excess of that specified in the written agreement, whereupon this action was brought.
That the plaintiff had the oral agreement testified to by him is established by the overwhelming weight of evidence. His testimony on that subject is not only uncontradicted, but he is corroborated by the witness Toepfer, the bookkeeper of the defendant, who stated that John H. Eagle, with whom the agreement was made, told him when giving directions as to certain entries to be made upon the books, that “ he had made a gentleman’s agreement *388with Mr. Nightingale according to which he was to give him $.7,500, but that he wanted me to ' credit Mr. Nightingale and Mr. Keller alike, in order not to let Mr., Keller know about this agreement.” Not only this, but he was in fact paid the amount called for by the oral agreement the first year, notwithstanding the fact "that he was only entitled under the written agreement to $6,100. The only explanation offered why tins difference — $1,400 — was.paid to him was that it was a present. The jury found that such agreement was made and it is difficult to see how they could have arrived at any other conclusion.
But it is said despite the fact that the evidence shows the oral-agreement was made, nevertheless' the plaintiff was not entitled to recover because his compensation was limited to that specified in the written agreement; in other words, that the evidence tending to establish the oral agreement was inadmissible inasmuch, as the effect of it was to destroy the written agreement. I think this evidence was admissible, not for the purpose of destroying the written agreement, but to show that the writing which purported to be an agreement was not, in fact, intended by the plaintiff and defendant as such. There is nothing new or startling in holding that parol evidence may be given to show that a writing purporting to be a contract was not, in fact, intended by the parties as such. There are numerous authorities to this effect, of which only a few need be cited. (Grierson v. Mason, 60 N. Y. 394; Chapin v. Dobson, 78 id. 74; Juilliard v. Chaffee, 92 id. 529; Union Trust Co. of New York v. Whiton, 97 id. 172; Schmittler v. Simon, 114 id. 176 ; Thomas v. Scutt, 127 id. 133; Baird v. Baird, 145 id. 659; Higgins v. Ridgway, 153 id. 130; Bank of Hamilton v. Klock, 73 Hun, 304.)
The question was directly passed upon in Grierson v. Mason (supra), and Judge' Milleb, who delivered' the opinion of the court, in which all of the judges concurred, holding that' such evidence vras admissible, said : “ The object of the testimony was to show that the instrument was exécuted for a specific purpose, and that purpose being accomplished, was of no effect in changing the contract previously made with the defendant. I think that it was competent evidence for this purpose. The defendant had made out a Contract. The plaintiff proved an instrument which altered the *389contract, and tlie defendant had a right to prove that the instrument introduced was not intended as an alteration of the contract, but with a view of accomplishing a particular purpose. Such evidence was not given to change the written contract by parol, but to establish that such contract had no force, efficacy or effect. That it was not intended to be a contract, but merely a writing to be used in inducing Woods to make advancements upon the goods. This is in avoidance of the instrument and not to change it, and I do not see why the testimony was not as competent in this case as it would be to show that a written instrument was obtained fraudulently, by duress or in an improper manner. Such evidence does not come within the ordinary rule of introducing parol evidence to contradict written testimony, but tends to explain the circumstances under which such an instrument was executed and delivered, or to show that it was canceled or surrendered. It would, I think, have been proper to show that the instrument was given up, and equally so that it did not constitute the entire contract, as it was only for a special purpose.”
This authority, so far as I have been able to discover, has never been questioned, but has been approved and followed many times by the Court of Appeals.
Judge Vann, in Thomas v. Scutt (supra), referring to the rule, said: “ Such proof does not recognize the contract as ever existing as a valid agreement, and is received from the necessity of the case to show that that which appears to be, is not and never was a contract. Illustrations of this class may be found in the following citations : Beecker v. Vrooman (13 J. R. 302); Hammond v. Hopping (13 Wend. 505); Johnson v. Miln (14 id. 195); Benton v. Martin (52 N. Y. 570); Grierson v. Mason (60 id. 394); 1 Greenleaf’s Ev. § 284.”
As between the original parties to a written agreement it is always permissible to show want or failure of consideration. So, one may prove by parol that the instrument sued upon was delivered to take effect only upon the happening of some future event (Seymour v. Cowing, 1 Keyes, 532; Benton v. Martin, supra) or that its purpose and object were different from what its language, if alone considered, would indicate. (Denton v. Peters, L. R. [5 Q. B.] 474; Blossom v. Griffin, 13 N. Y. 569.)
*390It is also urged that the judgment ought not to he permitted to stand because it is predicated upon an oral contract which was void under the Statute of Frauds. I am unable to see any force in this contention. The complaint contains, as already stated, two causes of action, one bn contract and one on qucmtum meruit, but the plaintiff had a right to prove what he was to receive under the oral contract for the purpose of establishing the value of the services ' rendered (Jeffery v. Walker, 72 Hun, 628) and that this was the purpose, in establishing the oral contract is evidenced by the reference which the trial judge made to.the authority just cited. “It is,” says Welles, J., in Lisk v. Sherman (25 Barb. 433), cited with approval by Haight* J., in the Jeffery case, “ the value of the services or property which the party receiving agreed to pay for them. In such cases it is said the contract furnishes the measure of damages; and it makes no difference that the contract is declared void by the statute, provided it might be enforced except for the statute:” . ■
Not only this but' the issue submitted to the jury, to which-defendant’s counsel did not except in any way, was whether plaintiff was to be compensated at the rate of $7,500 a-year, as - he claimed, or $5,000 a year, as claimed by defendant. The jury found in favor of the plaintiff and the verdict is sustained by the evidence.
For the foregoing reasons I think the judgment and order appealed from-should be affirmed, with costs.
Laughlin and Milleb, . JJ., concurred; Ingbaham, .P. J., and Dowling, J., dissented.