135 N.Y.S. 948 | N.Y. App. Div. | 1912
This is an appeal from a judgment directed by the court, and if there is evidence in support of the defendant’s contentions, the court erred in not submitting the questions involved to the jury, for in such a situation the defeated party is entitled to the most favorable view which a jury might properly have taken of the evidence. The complaint alleges the death of one Josephine I. Bayaud in Denver, Col., leaving a last will and testament, which was duly admitted to probate in the city of Denver on the 6th day of January, 1908; that under the provisions of this last will and testament Charles Lange, C. Adele Perrenoud and Zelie E. Ruter were made testamentary trustees of the said Josephine I. Bayaud, deceased, and that by the provisions of said last will and testament George A. De Loynes, now deceased, was a beneficiary to the extent of one-ninth share or interest in such estate. It is further alleged that “ on
The defendant Eliza De Loynes “admits that on or about the date specified in paragraph ‘ Second ’ of said amended complaint, the instrument therein referred to was delivered to the plaintiff, but shows and alleges that said delivery was made upon condition that the plaintiff would perform certain services, and as collateral to secure the repayment of such expenses as the plaintiff might incur in connection therewith, and except as hereinbefore specifically admitted or denied, the defendant Eliza De Loynes denies each and every allegation of said" paragraph ‘ Second ’ of the amended complaint. ” Leaving out of consideration the fact that the plaintiff in this action is the assignee of the party with whom the contract mentioned in paragraph 2d of the complaint was made, and that this assignment was not delivered to the plaintiff, nor upon the condition that the plaintiff would perform any services whatever, and assuming that the allegations of the answer relate to George T. Bayaud, to whom the assignment was made, let us con
We have been thus particular to point out the condition of the pleadings upon this point, because it is urged that the learned court at Trial Term erred in permitting the assignment to be placed in evidence without evidence as to its execution. The question came up when the plaintiff offered in evidence
But, assuming that it was necessary to have the assignment proved and in evidence, the objection raised was not a general objection which could not be obviated. The only objection was that the evidence offered was “ incompetent, irrelevant and immaterial,” and the express mention of these objections must .be deemed to exclude other objections not suggested, so that the point now urged must be deemed to; have been waived, and there is no contention that the assignment was either incompetent, irrelevant or immaterial.
The assignment being in evidence in the form in which it was delivered, and it appearing from such assignment that it was a sealed instrument, the case is to be considered from the standpoint of contracts by specialty. The rule is established in this State that a contract under seal is presumed to have been
The contract here under consideration recites that “in consideration of the sum of One ($1) Dollar, in hand paid to each of us by George T. Bayaud, of the City of Hew York, and of other good and valuable considerations, receipt whereof is hereby acknowledged, have jointly and severally granted,” etc. Eliza De Loynes, the appealing defendant, testifies that she received no money from Mr. Bayaud, hut we fail to find any other of the parties to this sealed instrument denying that they received the one dollar which is mentioned in the recital, while none of them deny the “other good and valuable considerations.” What these considerations were are not mentioned in the instrument, and they must be assumed to have been given until the contrary appears from the evidence, so that upon this branch of the case it would seem clear that the allegations of the plaintiff’s complaint have not been controverted, and that, he is entitled to- recover.
The answer sets up a separate defense to the matters alleged in the complaint, to the effect that the “making, execution and delivery of the instrument specified in paragraph ‘ Second ’ of the amended complaint by the persons therein enumerated was induced by and made upon the faith of certain representations made by George T. Bayaud to the said persons; that said
We see no reason for holding that the learned court at Trial Term erred in the construction of the contract. There was a clear and unmistakable contract for the conveyance of $2,000 out of any moneys realized from the estate, and this was followed by a proviso that “ if the gross amount received by us from the said Josephine I. Bayaud or from her estate shall be less than the sum of Ten thousand ($10,000) Dollars, then, and in that event, the said George T. Bayaud shall receive 20% of such amount in lieu of the said sum of Two thousand ($2,000) Dollars, as herein provided.” We are of the opinion that this is a matter of defense to the general provisions of the assignment, and that it was for the defendant to show that they had received less than $10,000 in order to defeat the assignment of the full amount. (See 36 Cyc. 1238, on Exceptions and Provisos.)
The judgment and order appealed from should be affirmed.
Jenks, P. J., Thomas, Carr and Rich, JJ., concurred.
Judgment and order affirmed, with costs.