12 N.Y.S. 726 | New York Court of Common Pleas | 1891
It was found by the trial judge—First, that the note in question was made and delivered by Reon Barnes for value received; second, that it was indorsed and delivered to the plaintiff by the payee for good and sufficient consideration, together with the bond; and, third, that thereafter, and on or about March 14, 1877, it was agreed between the plaintiff and defendant that the matter was not one of Gaybert Barnes, but a personal one of the defendant, and that at that date he owed the plaintiff the sum of $518.55, and that that was the true balance due upon said note.
The first point of the appellant upon this appeal is that there is absolutely no evidence to support the third finding of fact, upon which alone the conclusion of law is based that plaintiff is entitled to judgment against defendant. It would seem that the appellant has overlooked the clear admission of this fact in the pleadings. The complaint alleges: “Third. That thereafter, and on or about the 14th day of March, 1877, it was agreed between the plaintiff and the defendant that the matter was not one of Gaybert Barnes, but a personal one of the defendant, and that at that date he owed the plaintiff the sum of five hundred and eighteen 55-100 dollars, and that that was the true balance then due upon said note.” The only denial in the answer of these allegations is as follows: “Third. Denies that it was agreed between the plaintiff and the defendant on or about March 14, 1877, that the defendant then owed the plaintiff the sum of $518.55, or that that sum was the true balance then due upon the said promissory note, as is alleged in the third paragraph of the complaint.” A denial so worded as to put in issue in the precise words of the allegation certain averments of the third paragraph of the complaint, and referring expressly to that paragraph, which contains the whole charge or statement of the personal obligation of the defendant, and which yet avoids all reference to the latter, has all the force of an express admission of the portion which is not denied. It was not necessary for the plaintiff to give evidence of an allegation so admitted. It is claimed, however, that by introducing a certain paper drawn up and delivered by the defendant on the 14th of March, 1877, (but not signed by him,) the plaintiff showed that there was no such transaction as alleged in the complaint. That paper recited that Reon Barnes had purchased the note and bond in question, and that $518.55 is the true balance due upon said purchase. It was offered'by plaintiff as a memorandum made by defendant shoving the amount admitted to be due, and the testimony was that it was given as an agreement as to the amount due. It was not an agreement. It was-not enforceable against the defendant. It was a mere statement by him, which cannot have the effect of destroying the force of his solemn admission in the pleadings'as to the admission and agreement that the obligation to which he affixed the name of Gaybert Barnes as principal and his own as attorney was in fact his own contract. It is argued, however, that there was no consideration for any such agreement. As the agreement was admitted by the pleading, neither the question of consideration nor any other question affecting its validity could be raised. Besides, no such objection was made at the trial,
The remaining question upon this appeal arises under the statute of limitations, which was pleaded as a defense, the note in question having matured on June 28, 1876, and the action having been commenced on December 26, 1886. The plaintiff alleged in her complaint that the defendant made two payments of $20 each on account of said note in or about March, 1878, and that she received $75" as a dividend upon the bond about January 1, 1880, and that on December 15, 1885, the defendant paid her $266.66, leaving the balance sued for, of $429.94. The answer denies the making of any of these payments on account of the note, and denies any knowledge of the payment of any dividend upon the bond, and counter-claims the sum of $266.66, which lie alleges he lent to the plaintiff on December 15, 1885. All of these payments were proved, and, in addition, a payment of $41, in 1883. Evidence of this last amount was objected to because not alleged in the complaint. But a plaintiff is not bound to anticipate a plea of the statute by setting forth in his complaint the payments that he intends to rely upon to take the case out of its operation. Further objection is made that the circumstances under which the payment was made are nqt shown, and that proof of a mere payment of a particular sum is not evidence of an acknowledgment that more was due. It is sufficient answer that the witness was permitted, without objection, to state the several payments in answer to the question: “Has anything been paid by the defendant on account of this amount due?” This question did not necessarily call for a conclusion nor an opinion of the witness, but for a fact. He was not cross-examined as to the circumstances of each payment, nor was objection made that such circumstances were not shown. The testimony of payment was therefore competent as evidence of a part payment of an acknowledged indebtedness to the amount due. As to the payment of $266.66 on December 15, 1885, which plaintiff claims to have been a payment on account, and which defendant claims to have been a loan made by him to plaintiff, the testimony was conflicting; but there was ample evidence to sustain the finding. The plaintiff swore that she went to defendant, and asked for money on account of the money loaned, (for it op-peared without contradiction that the note was originally given by defendant for a loan of money to him from the plaintiff, through her brother, the payee of the note, and that the note was taken for her benefit,) that she asked for the money to pay her rent, and he drew the check for her. The witness Jacob Bamsay testified that two days after he met defendant on the treasury steps on Wall street; he was on the opposite side, and defendant whistled to him. He went over, and defendant said: “I saw Emma the other day, and gave her $250 on account. Now, Jake, I will fix up the balance of that as soon as possible.” Defendant testified that no request was made for a payment, but that plaintiff called upon him, and said she was in arrears for rent, and was about to be dispossessed, and he gave her his check, payable to her order, and bearing on its face the statement: “(for rent of No. 40 W. 38th St. for mo. of Dec.)” The check was produced. Upon the evidence of the original loan from plaintiff to defendant of the money for which this note
