¶1(dissenting). Plaintiff, over defendant’s objection, was permitted to testify to conversations varying the terms of the written contract; viz., plaintiff said that after the written contract was signed the sale price in conversations “ was then fixed ” and the gross sales based upon an average price of $11.50 per hat. The statement of the plaintiff’s attorney that the books showed defendant had shipped 2,554 hats which at $11.50 amounted to $29,371 on the basis of which the plaintiff asked for $1,418.55 was not evidence and there was no stipulation making it a substitute for evidence. On the basis of quantity and price these were the figures considered by the jury although the court inconsistently charged that the jury should not take into consideration testimony given by the plaintiff after the making of the contract.
¶2*348The only proof as to sales was offered by defendant; Exhibit A, shows that 785 of plaintiff’s hats were shipped during the contract period for a total of $2,661.90. The court, therefore should have directed a verdict on that basis, i. e., 5% of $2,661.90 less $50, or $83.10, since defendant admitted as much and plaintiff had not established anything different. It should not have submitted the case to the jury on the $1,410 claim because there was no competent proof whatsoever to support it. Even the jury recognized this by bringing in a verdict of $700 — an obvious compromise.
¶3The Appellate Term’s reduction of the recovery to $83.10 was fully warranted as the record does not justify any recovery beyond that amount. Accordingly, I dissent and vote to affirm.
¶4Peck, P. J., Callahan and Heffernan, JJ., concur with Bergan, J.; Dore, J., dissents and votes to affirm in opinion.
¶5Determination of the Appellate Term reversed and a new trial ordered, with costs to the appellant to abide the event. Settle order on notice.