87 A.D. 490 | N.Y. App. Div. | 1903
This is the second appearance of this ease in this court. On the former trial a judgment was directed by the court in favor of the plaintiff for the full amount of the plaintiff’s demand. Upon appeal to this court the judgment was reversed and a new trial granted (52 App. Div. 540).
The facts in the case were fully reviewed in the opinion delivered upon the former appeal, and it is not necessary that they be now restated. The case, however, differs in essential and controlling particulars from the questions which were raised and argued upon that appeal. Upon the opening of the trial it was stipulated by and between the parties that upon this trial either party to the action might read in evidence any portion of the printed case on'the former appeal, or give in evidence any exhibit as printed in the case,'with the same force and effect as though the original were produced, subject, how
. It is evident upon the present appeal that the defendant was not ■entitled to have its ■ declarations, whether written or oral, received in evidence. If the evidence be relied upon as establishing the affirmative fact that the varnish could not be made from the plaintiff’s formula, the defendant was required to make common-laAV proof of it. The written declarations were no more evidence of the facts stated therein than would any other declaration be in a party’s own favor. The letters and written statements did not prove themselves, and consequently it was error to receive them, and, if prejudicial to the plaintiff’s case, reversible error was committed. So far as the written letters and statements of the defendant tended to contradict the admission contained in the answer, they were incompetent. Upon, the former trial it was claimed that the admission contained in the answer was of a breach óf the contract which warranted a recovery, but this court held that such admission was qualified by the averments connected with it, and that* taking it as a whole, it could not be regarded as a conclusive admission of fhe breach of the contract, as the other averments of the answer excused the breach and, therefore, qualified the admission, and the court held that it could not be laid hold of, in view of the Ayhole answer, as justifying theconclusion that an inexcusable breach of the contract xwas admitted. The question now before us is entirely different. The admission in the answer that the defend
It cannot be denied but that there are some expressions upon this subject in our former opinion which justify the inference that a waiver of the breach, if it existed, was established by the uncontradicted evidence. The court, however, did not intend to decide such question, or lay down a conclusive rule in that connection or make a conclusive adjudication upon that subject. On the contrary, it discussed the effect of some of the testimony, and while it said that
It is quite probable that at common law proof of waiver might be • given under the general issue. Some of the cases have; gone so far as to hold that nearly every defense which showed that at the time-when the action was brought there was in fact no subsisting cause-of action might be proven under the general issue. (Wilt v. Ogden, 13 Johns. 56 ; Young v. Rummell, 2 Hill, 478.) However broad the. common-law rule might have been under the general issue, it is. evident that under the provisions of the Code the defense of waiver must be pleaded in order to be available as a defense. In principle waiver constitutes new matter, as it is something which does not arise out of the contract or transaction between- the parties, but.
Reaching this conclusion, it necessarily results that the judgment should be reversed and a new trial granted, with costs to the appellant to abide the event.
Van Brunt, P. J., Patterson, Ingraham and Laughlin, JJ., concurred.
Judgment reversed and new trial granted, with costs to appellant to abide event.