6 Paige Ch. 239 | New York Court of Chancery | 1837
The first thirty-three exceptions for impertinence all depend upon the same principle. These exceptions to the different parts of the joint answer of- the defendants, are exceptions to the same so far as it purports to be the individual answer of Dr. Nott as well as the answer of the other defendants. And the complainants by their exceptions seek to convert this part of the answer into an answer for the corporation only. In this they have proceeded upon the erroneous supposition that Dr. Nott had no interest in the defence of the suit, and for that reason was not entitled to insert any new matters of defence in his answer, but merely such facts and circumstances as were strictly responsive to the charges and allegations contained in the bill. It was not pretended upon the argument that the parts of
Neither does the subject matter of the 36th exception appear to be impertinent. The complainants allege that they proceeded to the sale of the tickets and the drawing of the lotteries with due dilligence, and that they became embarrassed in consequence of having hastened the drawings, upon the urgent solicitations of Dr. Nott. And they urge that fact as a reason why the agreement of 1826 was unconscieniious and ought not to be enforced. In answer to this the defendants say that Yates and McIntyre did not proceed with due diligence, but that the drawings of the lotteries were intentionally delayed for the purpose of facilitating the introduction of foreign tickets into the New-York market through the medium of an office at Jersey city, kept by H. C. & A. J. Yates ; and the market on one occasion was left unsupplied for a month. And that when Dr. Nott remonstrated against the delay he was told by Henry Yates, who afterwards became a partner with the other complainants and is now seeking to set aside the agreement of 1826
The part of the answer which is covered by the 37th exception contains the admission of J. B. Yates, in one of the verbal communications with Dr.Nott about the time of making the agreement of January, 1826, that the embarrassments under which Yates and McIntyre were then laboring, were produced by the unwarrantable speculations in which that firm had been engaged. This admission is pertinent, therefore, as it contradicts the allegation that those embarassments had arisen from the hastening of the drawing of the lotteries at the request of Dr. Nott. And as the complainants, by the interrogating part of the bill, had required the defendants to set forth whether any and what communication passed between the parties, about that time,
The 38th exception covers an allegation, the substance of which is again repeated on the 26th page of the answer, where it is connected with other matters which render it material. And as it is not admissible to insert the same matter twice in a pleading, except in those cases where it may be necessary to qualify or explain something connected with it, this exception was properly allowed by the master.
The 40th exception embraces a part of the answer which refers to the letters in schedule L. and connects them with the answer. And if this exception is allowed the schedule which will remain will be rendered perfectly unintelligible. (Franklin v. Keeler, 4 Paige’s Rep. 382.) If the whole of the schedule, as well as that part of the body of the answer which explains what it means was impertinent, the whole should have been excepted to; and the exception must be overruled for that reason. And if any of the letters embraced in that schedule were material, which I think is the fact, then the exception should be disallowed on the ground that its allowance would destroy a material part of the answer. The master should therefore have overruled this exception.
The 41st and 42d exceptions were not well taken. The bill charges that Yates and McIntyre made payments, on account of the 6 31/1060 per cent, mentioned in the agreement of the 30th of May, 1826, which agreement was subsequently modified, to the amount of $192,199,74. And in the parts of the answer excepted to, the defendants admit the complainants paid that precise sum on that account; and show the
The 43d, 44th and 45th exceptions, all relate to a single paragraph in the answer. The first covering the whole paragraph, and the two last only a part thereof; one of the latter being for impertinence and the other for scandal. It is evident, therefore, that only one of these three exceptions could in any event be sustained. For if the first was allowed the whole paragraph must be stricken out of the answer, and the other two exceptions would fall of course. And if either of the two last was allowed, the other, which covered precisely the same matter, must fall for the same reason. Seperate exceptions to the same matter for scandal and also for impertinence cannot be taken; for nothing in a pleading can be considered as scandalous which is not also impertinent. In this case, however, independent of the matter of form, the master was right in overruling these exceptions ; as the matter excepted to is responsive to that part of the bill which denies that two of the board of managers appointed by the defendants rendered no service, or that the
The matter of the 46th exception appears to be respon-sive to a distinct allegation in the bill. The complainants allege that the losses spoken of in the letter of the 4th of January, 1826, were losses which Yates & M’Intyre had sustained in consequence of being obliged to advance for prizes, &c. and by the failure of purchasers of tickets, to pay, &c. But as the letter, though dated on the 4th of January, was not actually written and sent by Yates & M'Tntyre until sometime afterwards, the answer, in response to this allegation in the bill, says the defendants are not informed save by the bill itself, whether the particular losses referred to in the letter and those mentioned in the bill are the same. But if they are the same, then they were referred to in the antedated letter as of a time when they did not exist; as they did not occur until after the fourth of January, 1826, the nominal date of the letter, and therefore could not have been the grounds upon which the application for assistance which was actually made on the fourth of January was urged, as stated in a previous part of the bill. That is the obvious meaning of this part of the answer, and if the fact there stated is true, that no such losses had been sustained on the 4th of January, it was very material to the defence that it should appear in the answer. This exception should therefore have been overruled. And the 47th exception should also have been overruled, because the part of the answer covered by that exception is responsive to the alie»
The matter included in the 48th exception is responsive to that part of the bill relative to the hazards Dr. Nott had run to sustain Yates & M’Intyre and prevent their failure; and shows that he had been the endorser for considerable sums at different banks. As the complainants alleged that Dr. Nott received money enough from them, and had it on hand, to meet all responsibilities and indemnify himself, he had a right to show by his answer what his responsibilities were. That exception should therefore have been overruled.
The part of the answer covered by the 50th and last exception for impertinence, relates to a matter which took place since the commencement of this suit, and is therefore not strictly responsive to the allegation which is met and denied in the first part of the same paragraph of the answer. And as this part of the answer, if put in issue, might lead to the introduction of the report of the committee of the corporation, made pendente lite, as evidence of the facts alleged, this exception which would otherwise have been frivolous was properly allowed by the master. (Hawley v. Wolverton, 5 Paige’s Rep. 522.)
The 51st exception, which is for insufficiency, was not well taken and should have been overruled. It could not possibly be material to the litigation in this suit to know the precise sums which had been paid or which are still due to Holland and Horsfall, two of the board of managers, for their services. The complainants themselves have considered it impertinent to state how much the defendants agreed to pay to H. Yates the other manager; and have succeeded in getting the fact that he received $13,000 for his ser- • vices, stricken out of the answer. It is therefore absurd for them to insist upon knowing what has been paid or agreed to be paid to the other two. The answer admits the appointment of the board of managers; and shows that
The 52d exception to the answer was not well taken. There is no positive allegation in the bill that the agreement of January, 1826, was not assented to by the trustees by any valid corporate act; but the suggestion of the fact is introduced by way of recital merely, in support of a conclusion of law. And if the complainants wished an answer as to the truth of the facts thus assumed to exist, by the use of the word inasmuch, they should have founded an interrogatory upon this recital. (Mechanics’ Bank v. Levy, 3 Paige’s Rep. 606.) This exception, therefore, should have been overruled by the master.
The form of the 53d exception does not appear to reach any material allegation in the bill. If there is any charge, which is not answered, that a mistake has occurred in the agreement of January, 1826, the exception should be that the defendants have not admitted or denied the existence of the mistake. If the mistake is admitted, the manner in which it occurred is immaterial; and if denied, it will be impossible to state how it happened. This exception is not well taken, and it should have been disallowed.
As to the 54th exception, I have found it utterly impossible, even with the assistance of the able counsel who argued the cause, to form any idea upon what allegation or charge in the bill the exception, or the interrogatory to which it relates, are founded; or to ascertain how it can be material or proper for the defendants, in their answer, to furnish the adverse party with a sworn argument upon the construction of the public laws of the state. The answer explicitly denies the allegations contained in the bill, that Dr. Nott claimed the sum there mentioned as the true sum to which Union College and the other institutions were entitled ; and there was no person against whom any valid claim could then have been made. And the defendants, on the 5th and 6th pages of their answer, show, as far as under the circumstances it was possible for any one to state, what was the probable extent of their legal rights, in connection with the other institutions, under the act of April, 1822. So
The 55th exception was fully answered, and therefore was properly overruled by the master. He should also have disallowed the 56th exception, as it calls upon the defendants to answer a mere arithmetical proposition ; as whether six and four added together will not make ten. A defendant can never be called upon to answer such an allegation. The master should also have disallowed the 57th exception, as it is wholly immaterial at whose instance the two and a quarter per cent received the particular name of the President’s fund,- The rights of the parties to this litigation would be precisely the same if, at the request of " another person, it had been called the Tutor’s fund. The 58th exception should also háve been disallowed; as the matter of this exception appears to be sufficiently answered upon the 7th, and 8th pages of the defendants’ answer. The 59th exception was not well taken, and should have been disallowed. The allegation in the bill is, that the letter of May, 1826, was written under the dictation of Dr. Nott, who furnished the terms and language; which in this allegation must be understood to mean the same thing. The denial that the letter was written under his dictation, is a substantial denial of the charge. If the complainants meant the court should understand that Dr. Nott drew the letter, and that they only signed it or copied it from his draft, they should have so stated the fact in their bill.
The 60th exception should also have been disallowed, The charge in the bill that the accounts stated wholly depart from and essentially vary the terms of the original and supplemental contracts, is a mixed question of law and fact, which it was impossible to answer in the terms of the .charge without attempting to swear to the legal construction of written instruments. But the answer shows what construction the defendants put upon the contracts, and that it was in conformity with such construction of those contracts, as modified by the parties in the subsequent contracts, that •the accounts were settled. And that according to that con-
The residue of the exceptions, ten in number, are excep lions to the answer of Dr. Nott as an individual, for insufficiency; and they cover precisely the same ground as the ten preceding exceptions to the answer of all the defendants for insufficiency. And they seem to have been put in upon the erroneous supposition that Dr. Nott was not a defendant in the suit, and therefore that the previous exceptions to the answer of the defendants did not reach him. But as I have before shown that he was not only nominally, but actually a defendant in the cause, the whole of these exceptions should have been overruled, on the ground that they were irregular or informal and were embraced in the previous exceptions, if the defendants’ counsel had not
The five exceptions to the master’s report taken by the complainants, and the 37th and 45th taken by the defendants, which object to the allowance of the 38th and 50th exceptions to the answer for impertinence, must be disallowed ; and the impertinent matter referred to in the two last mentioned exceptions must be expunged from the answer. Sixty-six exceptions having been taken to the report of the master, and the defendants having succeeded as to 64 of those exceptions, and the complainants only as to 2, the defendants must be allowed sixty-two sixty-sixths of their costs upon the exceptions to the report. And neither party is to have any costs on the reference to the master, j