Cooper v. Watson

10 Wend. 202 | N.Y. Sup. Ct. | 1833

By the Court,

Sutherland, J.

The issues to be tried were, 1. The general issue, with notice; 2. The issue joined upon the defendant’s second special plea of a voluntary surrender of the premises by the plaintiff without suit or lawful eviction. The defendant held the affirmative of the second issue; and all the plaintiff had to do to sustain the first, was to prove the execution of the defendant’s deed with the covenant of warranty. The plea of non est factum in covenant or debt on specialty only puts the execution of the deed in issue, and not the breach of covenant or any matter of defence. It admits the breaches assigned and every other material allegation in the declaration, provided the deed itself is proved. I Chitty's Pl. 482. Gardner v. Gardner, 10 Johns. R. 47. Dale v. Roosevelt, 9 Cowen, 307. Peake's Ev. 264, 5, 6, edition of 1806, where this rule is very clearly stated as follows: If the declaration (in covenant) contains different averments, and the defendant only plead non est factum, the other facts cannot be controverted, nor will the plaintiff be under any necessity of proving them further than may be sufficient to ascertain his damages. Tidd's Frac. 5S3. 6 Cranch, 206. The objection, therefore, taken by the defendant upon the trial, that the plaintiff was bound to prove his eviction by the production of the record of judgment and writ of possession, was properly overruled. The state of the pleadings rendered such proof unnecessary.

2. Evidence of title in the defendant at the date of his covenant was properly excluded. He was concluded by the recovery in the ejectment suit against the plaintiff, of which due and seasonable notice was proved to have been given to him, and the defence of which he may be considered as having actually assumed. Although the judge had decided that it was unnecessary for the plaintiff to prove notice of the suit to the defendant, he was right in permitting him subsequently to give such evidence, if the plaintiff thought proper to give it. It is unnecessary to consider whether it was incumbent upon him to give it or not.

3. The evidence offered by the defendant, that the plaintiff accepted a deed for the premises from Gilbert Stewart and gave back a mortgage, and that the judgment and eviction mentioned in the declaration were in consequence of said deed and mortgage, was also properly excluded; it was offered under the notice, and was clearly inadmissible on the ground of variance. The notice was of a deed from Samuel Dexter to the plaintiff) and a mortgage back to him. There is no allusion whatever in the notice to Gilbert Stewart as Dexter’s agent, or in any other manner. The offer of the defendant to prove that he was in fact Dexter’s agent, did not remove the difficulty. It was not offered to be proved that the plaintiff knew him to be Dexter’s agent and dealt with him as suc“ in transaction. It was also inadmissible on another g"round; it was offering to prove the evidence given on the trial of the ejectment suit to show the ground of the recovery. This cannot be done without producing the nisi prius record to shew what the pleadings and issue were.

The same objections would exist to the evidence, if it had been offered under the second special plea. That speaks of Dexter, not of Stewart; and the facts which it states in relation to the ground of the recovery, could not be proved without the production of the record. The motion for a new trial must be denied upon the case.

The plaintiff is also entitled to judgment upon the demurrer to the defendant’s rejoinder. It is clearly bad for the special causes assigned.