Jarvis v. Palmer

| New York Court of Chancery | Aug 5, 1845

The Chancellor.

The first demurrer; which is to so much of the bill as seeks ah answer and discofery ks to the agreement of the 13th of May, 1841, and an accohnt in respect to the acts of the defendant under that agreement, appears to be well taken; and is not overruled by the plea. It is true, the complainant, under the agreement referred to in that demurrer, would be entitled to payment of the amount which the judgment and other liens, exclusive of the partnership debts, should fall short of the $8177,24. But I have not been able to fihd any allegation or chargeüh the bill, either upon information; belief or otherwise, that these judgments and liens did fall short of that sum. And to entitle the complainant even to a discovery in aid of a suit at law, to recover the difference, the complainant must at least allego that he believes they fell short, For that-reason the complainant is not eutitled to any discovery or relief in relation to the matters embraced in this demurrer. The first demurrer should, therefore, have been allowed.

The second demprrer was properly disallowed, inasmuch as it covers every thing in the bill respecting the agreement of the 11th of May, 1841, and the schedule annexed, as well as the-discovery and relief respecting the debt of Ryerson, and the payment thereof. The broad terms of this demurrer, therefore, necessarily cover the allegations and charges in the bill, that the agreement of the 11th of May was procured to be executed by the false assurauce of the defendant that it contained a provision, or that it was a part of such agreement, that the copartnership debts, when collected,, should be divided between Brower and the defendant. And as that charge in the bill respecting the agreement of the 11th of May, 1841, is denied, both by the answer and the plea, this, demurrer is overruled by such plea and answer. The defendant did not probably intend to cover so much of the discpvery sought by the bill as is actually embraced in the second demurrer. But the rule of chancery pleading is such, on this subject, that if the demurrer does not go to the whole bill, it must clearly express the particular parts which it is designed to cover; so that upon a reference of the answer to the residue of the bill, upon exceptions for insufficiency, the master may be able to ascertain precisely how far the demurrer goes, and how much of the bill remains to be answered. (See Welf. Eq. Pl. 266; Devonsher v. Newenham, 2 Sch. & Lef. 205.) And as a demurrer cannot be allowed in part, where it is too broad, if any part of the matter covered by the demurrer is also covered by a plea, or answer, the whole demurrer is overruled by such plea, or answer. (Jones v. The Earl of Stratford, 3 Peere Wm's Rep. 81.)

The third demurrer cannot be sustained, because it is liable to the same objection as the second. If also covers a part of the relief embraced in the plea; to wit, the account and payment of one half of the copartnership debts collected by the defendant.

The plea appears to be good in substance, and is not, as the complainant’s counsel supposes, a plea of matters appearing upon the face of the bill. It is true the pleader urges objections appearing upon the face of the bill, in bar; but he urges them in connection with the averments in the plea negativing the belief of Brower, that there was a provision in the written agreement which was not in fact there, and also negativing the allegation that the defendant assured Brower that there was such a provision in the agreement. In the absence of any false representation on the part of the defendant, or any misapprehension of Brower as to the existence of such a provision in the agreement, and supposing the fact to be that Brower knew precisely what the terms of the written agreement were, it is impossible to imagine how Brower could have supposed the effect of the agreement would be to give him the right to the one half of the debts of the firm which should be collected. For the language of the written agreement, as to the exclusive right of the defendant to collect and receive all the debts for his own use and benefit, is just as clear and explicit as it is in relation ■ to the exclusive right of the defendant to the horses and carriages and other property of the firm. And to allow parol evidence to contradict or change the express terms of a written agreement, by proving'that one of the parties to the agreement represented that such agreement would give to the other party what the written contract .distinctly declared he should not have, would be a dangerous innovation upon the settled rule of law on this subject. That rule is, that the written agreement itself is the best evidence of what the parties intended should be the final and binding contract between them; where nothing has been left out of the written contract by fraud or mistake, which the parties supposed was inserted therein when the agreement was executed by them.

This plea, however, is defective in point of form; because it does not state with sufficient certainty the part .of the discovery, sought by the bill, which it was intended to cover. The same rule, applies to pleas as to demurrers in this respect; that where the plea, or demurrer, do not go to the whole bill, but 01% to a part of the discovery or relief sought, it must clearly and distinctly point out the particular parts of each which such plea or demurrer is designed to cover. That is, the part of the discovery and relief intended to be covered by the plea or demurrer must be set out in the words of the bill or by such a description that the court will not be obliged to look into the whole bill to find the part which is covered by the demurrer or the plea. (Johnson v. Johnson, 2 Moll. Rep. 415. Chetwynd v. Linden, 2 Ves. 451. Welf. Eq. Pl. 267, 298.) Here the plea is as to certain parts of the relief sought by the bill, which parts of the relief are clearly specified; but it is to all the discovery asked for by the complainant, as far as such discovery in any way relates to the relief before mentioned, except as to the discovery, specifying it, which is made by his answer in support of the averments in the plea. It is evident that by this mode jf pleading, it is impossible to ascertain what part of the dis-jovery sought by the bill is covered by the plea, without trav-elling over the whole bill, and determining what part of the discovery sought relates to the portion of the relief specified in the plea. In other words, the duty is thrown upon the court, by this plea, of searching through the whole bill for the purpose of ascertaining what part of ^ the discovery called for, by the bill, is material or relevant to the particular relief covered by the plea. This is not allowable; and the plea, therefore, was properly overruled. But as this was a mere formal defect, the plea should have been overruled without prejudice to the defendant’s right to insist upon the same matters in his answer.

The order of the vice chancellor must, therefore, be reversed, so far as relates to the first demurrer, and that demurrer must be allowed. And the overruling the plea and the other demurrers must be without prejudice to the defendant’s right to insist upon the same matters in his answer. Neither party is to have costs, as against the other, upon this appeal.