App. Div.] MILLER, J.: First Department, November, 1911. This action was brought on the following guaranty, viz.: "NEW YORK, Dec. 24th, 1908. "I hereby guarantee the payment of all bills as they may come due for goods that my brother, Meyer Edelman, may buy of Benjamin Griffen of this city. 66 This guarantee shall not exceed in amount the sum of $500 of unpaid bills which he may buy during one year from date. When Meyer Edelman shall owe Benjamin Griffen the sum of $500.00 I am to be notified and I will then notify Benjamin Griffen if I am willing to increase the guarantee. "A. A. EDELMAN." It is undisputed that on February 8, 1909, the defendant paid the plaintiff on account of said guaranty the sum of $150.81. We are not impressed by the argument in support of the contention that the memorandum is insufficient to satisfy the Statute of Frauds, and that the contract is unenforcible for want of mutuality. However, the appellant does call attention to two serious errors in the case. There can be no doubt that the defendant's guaranty was limited to the sum of $500 for goods purchased within one year from its date. Of course the guaranty was continuous in the sense that it was not limited to the first bill of goods ordered. It was, however, limited in time to goods purchased within one year, and in amount to the sum of $500. The payment by the defendant of the sum of $150.81 on account of his guaranty reduced his obligation thereunder pro tanto. We would be able to modify the judgment and to affirm it for the balance of the recovery were it not for a defect in the proof as to the amount and value of the goods purchased by the said Meyer Edelman. The latter, who was not on speaking terms with the defendant, was called as a witness by the plaintiff and was permitted over objection and exception to state that he had purchased $531.77 worth of merchandise from the plaintiff. The plaintiff claimed that that was the sum unpaid after deducting the payment of $150.81, made by the defendant. The witness was then permitted to state, over proper First Department, November, 1911. [Vol. 146. objection and exception, that he then owed the plaintiff the sum of $531.77 for goods purchased, and that testimony constitutes all of the proof in the case on the amount of purchases made by Meyer Edelman, except certain signed slips, which were evidently delivered to the plaintiff by him or some of his employees whenever goods were obtained. But those slips fail to show the quantity or purchase price of the goods. A guarantor is at least entitled to insist that the amount of his principal's indebtedness be established by competent evidence, and that was not done in this case, wherefore the judgment and order appealed from must be reversed and a new trial ordered, with costs to appellant to abide event. INGRAHAM, P. J., MCLAUGHLIN, LAUGHLIN and CLARKE, JJ., concurred. Judgment and order reversed, new trial ordered, costs to appellant to abide event. SOLOMON L. PAKAS, Respondent, . FRANK C. HURLEY, Appellant. First Department, November 3, 1911. Master and servant - employment to manage hotel- liability for rents collected - conversion - setoff-disbursements of servant. One employed to take the sole charge and management of a hotel when sued, after being discharged by his employer, for moneys collected from guests, is entitled to offset his reasonable disbursements against the rents received. The defendant cannot be charged in an action for conversion with the whole amount received on the theory that the plaintiff was entitled to the identical money collected. APPEAL by the defendant, Frank C. Hurley, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 13th day of April, 1911, upon the verdict of a jury for $2,455.87, and also from an order entered in said clerk's office on the 19th day of April, 1911, denying the defendant's motion for a new trial made upon the minutes. App. Div.] First Department, November, 1911. Albert I. Sire, for the appellant. J. Arthur Corbin, for the respondent. MILLER, J.: In April, 1908, the plaintiff became the owner of the premises known as the Hotel Orleans, and temporarily employed the defendant, a prospective tenant, as manager for the purpose of enabling the latter to ascertain whether he desired to enter into a lease. As such manager the defendant had sole charge. He purchased the supplies, employed the help and collected the bills. While it does not plainly appear whether he paid the running expenses, it is fairly to be inferred, and it appears to have been assumed on the trial, that he did. The plaintiff testified that he (the plaintiff) never drew checks. The plaintiff claims that, on the thirtieth of June, he discharged the defendant. At that time the defendant claimed that the plaintiff had given him a lease of the premises and refused to surrender possession. The plaintiff undertook to obtain possession and was put out of the building by men presumably in the defendant's employ. The defendant was ousted from possession on or about July thirtieth as the result of judicial proceedings. He collected from guests for room rentals for the month of July the sum of $2,112.07, and he also collected the sum of $513.80 for June rentals. The plaintiff has recovered a judg ment in conversion for those two amounts with interest, less the sum which he admitted owing the defendant as salary. The court excluded evidence offered by the defendant to show the expenses incurred by him during the month of July in furnishing service and the like to the guests of the hotel; and the sole question on this appeal is whether the court erred in that ruling. This judgment can only be sustained on the theory that the identical money received by the defendant belonged to the plaintiff. But it seems to us quite plain that it did not. Doubtless, the defendant was a trespasser. If the plaintiff had brought an action in ejectment and had demanded damages for the withholding of the property, he could have recovered the rents and profits or the value of the use and occupation (Code Civ. Proc. 1497), but if he sought to recover the rents and profits First Department, November, 1911. [Vol. 146. his recovery would have been limited to the net rentals, and in an action at common law, in the form of an action for trespass, for mesne profits, the defendant was entitled to offset expenditures which the owner would have been obliged to make had he remained in possession. (See Wallace v. Berdell, 101 N. Y. 13.) Doubtless, the plaintiff could have elected to treat the defendant as a manager or agent, de son tort, so to speak. But even then the plaintiff was entitled, not to the identical money collected by the defendant, but only to the net amount remaining after the payment of expenses. The plaintiff assumes that the guests of the hotel remained his guests after the defendant wrongfully took possession, and that the identical money paid by them to the defendant belonged to him. But that assumption overlooks the fact that the room rentals were paid, not alone for the bare privilege of occupying the rooms, but as well for the service furnished by the defendant. As manager, the defendant remitted not the identical money received by him, but the net amount after deducting expenses. It follows, therefore, that, whether the plaintiff elected to compel the defendant to account as agent for the July rentals, or, treating him as a trespasser, to recover the rents and profits as damages for wrongfully withholding the property, the defendant would be entitled to offset his reasonable disbursements against the rents received. For the error in excluding the evidence on that head the judgment and order must be reversed and a new trial granted, with costs to appellant to abide the event. INGRAHAM, P. J., LAUGHLIN, SCOTT and DOWLING, JJ., concurred. Judgment and order reversed, new trial ordered, costs to appellant to abide event. App. Div.] First Department, November, 1911. BERTHA EVANS and NORMAN G. KENAN, Doing Business under the Firm Name and Style of EVANS & COMPANY, Respondents, v. CHARLES J. PELTA and ABRAM J. PELTA, Doing Business under the Firm Name and Style of PELTA BROTHERS, Appellants. First Department, November 3, 1911. Contract Statute of Frauds sale of goods memorandum. insufficient While a contract for the sale of goods need not be comprised in a single writing in order to satisfy the Statute of Frauds, oral evidence is not admissible to supply any of the essential terms of the contract omitted from the writing. Thus, where a series of letters relating to a sale of goods merely admit that some goods had been ordered, but do not disclose the kind, quan tity, or purchase price, they do not satisfy the requirements of the statute. APPEAL by the defendants, Charles J. Pelta and another, doing business under the firm name, etc., from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 13th day of March, 1911, affirming a judgment of the City Court of the city of New York in favor of the plaintiffs entered in the office of the clerk of said City Court on the 5th day of December, 1910, upon the verdict of a jury rendered by direction of the court in an action for goods sold and delivered. H. A. Rosenberg, for the appellants. Nathan Friedman, for the respondents. MILLER, J.: The question involved in this case is whether the defendants' letters were sufficient to take the contract of sale out of the operation of the Statute of Frauds. It appears that on the 7th of December, 1907, the defendants at Colorado Springs, Col., gave the plaintiffs' agent an order for merchandise of the value of $366.45. While a memorandum of the order was made by the agent and transmitted to the plaintiffs, it was not signed by the defendants. On March 4, 1908, the defendants wrote |