| New York Court of Chancery | May 16, 1905
This demurrer is framed and has been argued upon the assumption that the bill of complaint alleges that the Mason estate presently owes to the defendant an unpaid indebtedness exceeding $21,000, and that to secure this indebtedness, the piano leases and the moneys payable thereon were by Mason, in his lifetime, assigned to the defendant.
For the purpose of this hearing, the facts narrated in the bill of complaint are by the demurrant admitted to be true in the manner .and form in which the complainant there states them. Facts not stated in the bill of complaint, or variances of those which are stated, cannot be presented by the defendant as the basis of a demurrer.
The averments of the bill of complaint do not set forth the complainant’s case with definite precision. Nevertheless, a careful reading of the portion of the bill of complaint demurred to
It is not alleged by the bill that the leases were assigned as collateral security to secure all the several items of indebtedness of Mason to the defendant, amounting in their total to $21,000. What the bill alleges is that the defendant claims that Mason, in his lifetime, was indebted to the defendant in several sums of money, to wit, for moneys' due the defendant for pianos delivered to Mason, and by him sold on leases, $17,192.18, and for moneys loaned by the defendant to Mason in his lifetime, $4,200. The bill proceeds to show that by the arrangement between Mason and the defendant, Mason bought each piano from the defendant on credit; he then leased it to the purchaser for a term, reserving monthly rentals, agreeing at its expiration to give to the purchaser a bill of sale for the instrument. Each lease, when thus obtained, was by Mason assigned to the defendant as collateral security for the payment of the wholesale purchase price which Mason owed the defendant for that particular piano; that Mason then collected the rentals, (which were really partial payments of the price to be paid by the lessee-purchaser) as they came due on each piano, remitted to the defendant the wholesale price he had agreed to pay the defendant for that piano, and received from the defendant a surrender or return to him (Mason) of the lease for the piano thus paid for to the defendant. That Mason then proceeded to collect from these purchasers and retain for himself the residue of the rental^ which constituted the purchase price agreed to be paid by the lessee-purchaser. The complainant charges that the defendant has failed to return to Mason leases of pianos for which the wholesale price has been fully paid to the defendant; that the defendant now asserts the right to hold these retained leases as collateral security for the payment of the loan (i. e., the $4,200) which the defendant claims to have made to Mason.
It will be observed that the gravamen of the complaint in the bill is that the defendant, having leases severally assigned as collateral security for the payment of the definitely separate
The grounds of demurrer misconceive and misstate the allegations of the bill, for they assume that the bill admits that all the leases have been assigned as collateral security for the payment of the whole indebtedness claimed to be owed by Mason to the defendant, whether for pianos sold or for moneys loaned, exceeding in its total the sum of $21,000, and on this misstatement of the allegations of the bill the defendant demurs to the prayers for injunction and receiver, insisting that upon the bilks own showing he cannot be restrained in the exercise of his right to collect the lease moneys pledged to him to secure the debt owing to him, and that a receiver cannot equitably be appointed for that purpose.
The demurrant, by this misstatement of the allegations of the bill of complaint, has introduced a new statement of facts into the record, and upon the facts thus brought in by himself he demurs to the bill of complaint. Such a pleading is a speaking demurrer and cannot be sustained. Story Eq. Pl. § 448; Edsell v. Buchanan, 2 Ves. Jr. *83; Black v. Shreve, 7 N. J. Eq. (3 Halst.) 440; Teeter v. Veitch, 57 Atl. Rep. 164.
A decree will be advised overruling the demurrer, with costs, with leave, to answer, &e.