text:
    Gildersleeve v. Mahony, impleaded.
    When a plaintiff, In an action against a firm, in order to prove that the endorsement of its name was written by one of its members, reads a portion- of one of the firm’s answer, which states such to be the fact, but also alleges other facts, which, .if true, would be a defence to the partner whose answer is so read, the latter is entitled to have the other parts of the answer, which present such defence, read as evidence in his own behalf.
    But although the Judge, at the trial, rules the contrary, a new trial will not be granted for, that reason, if the plaintiff subsequently proves, by clear and uncontradicted evidence, facts which would render such defence wholly unavailing.
    In such a case, the court can see that the error could not, possibly, have prejudiced the defendant.
    (Before Oakley, Oh. J., and Doer and Bosworth, J.J.)
    February, 1856.
    This action came before the court on an appeal, by Mahony, from a judgment on a verdict rendered against Mm, in favor of the plaintiff. It was tried before Mr. Justice Slosson and a jury, on the 24th of May, 1855.

      It was brought upon a note dated the 2d of August, 1854, made by defendant Patón, payable four months after its date, to the order of the defendants, Carpenter & Jaques, and endorsed in blank by that firm, and by defendant Yancleve, and the defendants Auliffe & Mahony, and transferred to the plaintiff so endorsed. It was for $1,000. Defendant Mahony was one of the firm of Auliffe & Mahony.
    The complaint was in the same form, substantially, as the one in the case of Burrall v. De Groot. Ante, 379.
    The answer of Mahony stated, that Auliffe endorsed the note, in his firm’s name, without a consideration, for the accommodation of Carpenter & Jaques, and without the knowledge or assent of Mahony, and that Patou also signed it, as maker, for the like accommodation.
    For a further and separate defence, it states the accommodation, making and endorsement of the note, and that, when first negotiated, Carpenter & Jaques transferred it to Charles' Burrall, on a discount of it at the rate of three-and-one-quarter per cent per month, Burrall knowing, when he took it, that it was accommodation paper.
    It farther alleges that Burrall is the real party in interest in this action, and that plaintiff received it from Burrall, for the purpose of suing it in his own name for the benefit of Burrall. The complaint concludes thus :
    Wherefore, and by means of the premises aforesaid, the said plaintiff became, and was, and is, an unlawful holder of said note, and of the endorsement of the firm of this defendant thereon. And this, defendant is entitled to have his name, and the firm name of this defendant, and his and the liability of his firm discharged; and he demands judgment that the complaint be dismissed as against him and his firm, and-that his name and that of his firm, be cancelled and discharged from said note.
    The counsel for the plaintiff was proceeding to open the case, when Mr. Sanxay, of counsel for the defendant, moved that the complaint be dismissed, on the ground that it does not contain facts sufficient to constitute a cause of action against this defendant.
    Which motion being denied, said counsel excepted.
    Said-counsel then moved for judgment on the record, that the complaint be dismissed, on the ground that the answer contains a counter claim, and a demand for affirmative relief, and sets forth, affirmatively, the substantive facts of a complaint, to vacate a promissory note for usury, and prays the same judgment that would be proper in an action brought for that purpose, and that the same is not replied to.
    Which motion being denied, said counsel excepted.
    The counsel for the plaintiff then offered the note mentioned in the complaint in evidence.
    To which the said counsel for the defendant objected, on the ground that the answer denies, and puts in issue, the endorsement of the firm name of McAuliffe & Mahony, and the fact that said parties were a firm at all, in so far as said endorsement is .concerned.
    But the said Justice ruled, that the endorsement is sufficiently admitted by the answer.
    To which ruling said counsel excepted.
    Said counsel for defendant then moved, that, inasmuch as the admission of the defendant in the answer, if said answer contains one, must be taken together as a whole, the contemporaneous assertion by the defendant, in the answer, which goes to his discharge, or to show that he is not liable, must-be received with and as part of the admission, and as evidence of his discharge, and he again moved to dismiss'the complaint.
    But the said Justice ruled, that the defendant must make out his discharge, or show that he is not liable as endorser, by affirmative proof, and he denied said motion.
    To all which said counsel excepted.
    Said counsel for defendant then moved, that said defendant have the affirmative of the issue, and that he be considered as opening, and be permitted to close the case.
    But the said Justice ruled, that, as to the opening and closing the case, it is a matter of discretion with the court, and he will allow such motion if defendant admit plaintiff’s case; otherwise, not.
    To all which said counsel excepted.
    The counsel for the plaintiff then read said note, and the same of McAuliffe & Mahony endorsed thereon, to the jury, under the exception of the defendant’s counsel, and then, proving the interest on the note, rested his case.
    The said counsel for the defendant then moved for a dismissal of the complaint, or a nonsuit, on the ground that the plaintiff had failed to make out a case against the defendant by competent proof.
    But the said Justice denied said motion.
    Whereupon said counsel excepted.
    The said counsel for the defendant then called Charles Burrall, Jr., who, being sworn, testified: I know the plaintiff; he was formerly engaged in the business of discounting paper; he has failed; he now has charge of the Empire Iron Works; I believe he has made a general assignment of his property, but I don’t know when; I don’t recollect when he made his assignment. The note in suit being shown to witness, he said: I have seen this note before; it came to me about the second of August last; I received it from George R. Jaques, one of the firm of Carpenter & Jaques, the payees of the note.
    Being cross-examined, he said: I afterwards sold the note to Gildersleeve, the plaintiff; I sold it to him about thirty days before it became due; he gave me his check on the Irving Bank for it,' less interest seven per cent.
    Redirect.—He has never retransferred the note.
    Robert Patón, being sworn, testified: I know the parties to the note; I am the maker of the note; I made it for the accommodation of Carpenter & Jaques; I delivered it to Mr. Jaques; I never received any value for it from any one; I know McAuliffe & Mahony ; they are stone-cutters; I never passed it to them.
    George W. Stevens sworn: I am acquainted with McAuliffe & Mahony; they are, and were at the time of the making of the note, stone-cutters.
    The defendant here rested.
    The counsel for defendant asked the court to charge the jury, that the defendant was entitled to a verdict, on the grounds stated in his opening, and that it was incumbent on the plaintiff to show an assent of both of the members of the firm to the endorsement, or that the note was passed in the regular course of business, or within the scope of the business of the firm; that the note was shown to be an accommodation note, for the benefit of the payees, Carpenter & Jaques, who negotiated it, and that it never was shown to be in possession of defendant; and that the plaintiff’s title coming from Carpenter & Jaques, the payees, he was chargeable with knowledge that the endorsers of the note were accommodation endorsers, and was sufficient to put him upon his inquiry, in regard to the parties subsequent to the payees, and, if he neglected to make inquiry, he took no better title than the payees had; and, moreover, that the endorsers, under the circumstances, must be regarded only as guarantees, and that their guaranty is void.
    But the said Justice refused so to charge, and directed the jury to find a verdict for the full amount of the note, with interest.
    To all which said counsel for defendant excepted.
    Judgment having been entered on the verdict, the defendant, Mahony, appealed to the General Term.

      S. Sanxay, for appellant.

      J. E. Burrell, Jr., for respondent.
   By the Court. Bosworth, J.

The complaint states facts sufficient to constitute a cause of action, and judgment should not have been ordered for the defendant, on the pleadings, for the reasons stated in the opinion of the court, in the action of Burrall v. De Groot, impleaded with Paton. Ante 379.

Whether there was error in holding that the plaintiff, by reading a part of the answer setting up a separate defence, as an admission of the endorsement of the note by defendant’s firm, did not make the other allegations, of that part of the answer, evidence in favor of the defendant, of the facts alleged, it is unnecessary to decide.

For, assuming that the defendant had a right to read the whole of 'that part of the answer, as evidence of the truth of the facts it affirmed, the exception to the decision, refusing permission to read it, is obviated, by proof, subsequently given, that the plaintiff bought the note, and paid full value for it, before its maturity. There being no pretence that he had notice, at the time, that it had been endorsed and negotiated by one of the partners, for purposes foreign to the partnership, the plaintiff was entitled to recover.

If the plaintiff had given evidence of that fact in the first instance, and which was wholly uncontradicted, the court would have been justified in excluding evidence tending to prove the facts set up in that part of the answer. It was agreed, on the argument, that the only part of the answer, which defendant claimed the right to read, is comprised between folios ten and twelve of the case, inclusive. Those allegations present the defence first set up in the answer.

It would have been proper, in the case supposed, to have excluded such evidence, unless the defendant proposed to go further, and prove notice to the plaintiff of the misappropriation of the endorsement.

If the defendant is right, in his position, that the plaintiff, by reading that part of the answer containing the first defence, as evidence that the note was endorsed by'the firm, made the other allegations evidence of their truth, then it was clearly necessary for the plaintiff to giv^ further evidence, before he would be entitled to recover. In that view, he held the affirmative of the issue. So, too, if the endorsement, by the firm, was, as he contends, denied by the answer, the plaintiff was bound to prove it.

In either way of viewing it, the plaintiff held the affirmative of the issue. And supposing the plaintiff to have read the whole of the answer setting up the first defence, and thus, while proving that the name of defendant’s firm was written by one of its members, also gave evidence tending to show that the note was endorsed and negotiated out of the firm’s business, without the knowledge of the defendant Mahony, still the plaintiff would be entitled to recover, on proving that he became the holder of it, before maturity, for value, and without notice of the fraud practised on the defendant by his copartner.

An erroneous ruling, when the plaintiff rested, that the defendant was bound to prove the matters averred, in the part of the answer read, in discharge of his liability, is not one for which the judgment should be reversed, as evidence was afterwards given, which was wholly uncontradicted, and which entitled the plaintiff to a verdict, admitting all the matters alleged, in such part of the answer, to be truej as therein stated.

The judgment, in this action, should also be affirmed.


source: Caselaw Access Project

author: By the Court. Oakley, Ch. J.

license: Public Domain

text:
    Evariste Texier v. Theodore Gouin and Leopold J. Boeck.
    Where the defence, relied on at the trial, differs, in its entire scope and meaning, from that set up in the answer, the court has no power to treat the variance as immaterial, or to direct the answer to be amended, or the fact to be found according to the evidence.
    If proof of such a defence, although objected to, is admitted by the court, a verdict for the defendant, founded thereon, will be set aside, as contrary to law.
    The Code, in defining the requisites of an answer, has abolished the general issue, as formerly understood, and has, therefore, abolished the rules that formerly prevailed, as to the matter that might be given in evidence under that plea.
    The only effect of a general or special denial of the allegations of a complaint, is to cast the burden of proof upon the plaintiff; but when that proof is given, no evidence of a defence, not set up in the answer, can be received.

      New trial, costs to abide the event.
    (Before Oakley, Ch. J., Duer and Bosworth, J.J.)
    February, 1856.
    This was an action by the plaintiff, as endorsee, against the defendant Grouin, as maker, and the defendant Boeck as endorser, of a promissory note, for $1,800, dated 5th June, 1854,. and payable to the order of Boeck, four months after date.
    The complaint was in the usual form, and contained all the allegations necessary to charge the defendants. The answer admitted the making, endorsement, &c., of the note, but set up, as a defence, that it was without consideration, had been transferred to the plaintiff merely as a collateral security, and had been obtained by false representations.
    The cause was tried, upon the issues raised by these pleadings, before Oakley, Ch. J., and a jury, in April, 1854.
    The plaintiff, after producing and reading the note, and proving the amount due thereon, rested.
    The defendant Grouin was then sworn, as a witness, on behalf of the other defendant, and, after stating that the note was given for merchandise, he was asked whether the note had been paid. The counsel for the plaintiff objected to the question, on the ground, that the defence of payment was not set up in the answer; but the court overruled the objection, holding that, under the power of amendment, given by the Code, the evidence might be received: and the counsel duly excepted to the decision.
    The witness then swore, positively, that he paid the note, in full, on the evening of the day on which it bore date.
    Another witness was then sworn, on behalf of both defendants, who testified, substantially, to the same facts. This evidence was also objected to, the objection overruled, and an exception to the decision duly taken.
    Some evidence was then given, on the part of the plaintiff, tending to discredit the testimony of the witnesses for the defendants.
    Upon the question of payment, the cause was submitted to the jury, who found a verdict for the defendants.
    The plaintiff appealed from the judgment, on this verdict, and the appeal was heard, upon a case containing the 'pleadings, and the proceedings and exceptions, on the trial.

      J. N. Ddlestier, for plaintiff, appellant.
    The only defences, set up in the answer, are, that the note was delivered to the plaintiff as collateral security, and also was obtained by false and fraudulent representations. Payment was not merely a distinct, but an inconsistent defence; and the Judge therefore, erred, in not excluding the evidence. (Fagon v. Davison, 2 Duer, 253; Catlin v. Hanson, 1 Duer, 329. Bosworth, J.)—This is not a case in which proof that the plaintiff was misled, or-surprised, could justly be required, under § 169 of the Code. It is not a case to which that section applies.

      H H. Morange, for defendants, respondents.
    After the payment, in full, by Grouin, the plaintiff’s possession of the note was wrongful, and proof of payment was, therefore, proper, to show that he was not its lawful owner and holder; it was also proper, to show that he had no cause of action when he commenced the suit, and it was competent, under the pleadings. ( Welt v. Ogden, 13 John. R. 56; Sill v. Rord, 15 John. 231; 2 John. 346.) It is, also, a conclusive reason, for not granting a new trial, that no affidavit that the plaintiff was misled was made, on the trial.
   By the Court. Oakley, Ch. J.

Upon reflection I concur with, my brethren, that, under the pleadings in this case, proof of the payment of the note ought not to have been received, and that I had no power, under § 169, or any other section, of the Code, either to amend the answer, so as to warrant the admission of the proof, or to treat the variance, which it created, as immaterial. It is true, that the language of § 169 is broad enough to embrace every possible discrepancy, between the proof and the pleadings, so as to make it the duty of the court, upon a trial, either to amend the pleading, or disregard the variance, in every case, , in which it is not proved, to its satisfaction, that the adverse party was actually misled, to his prejudice,.in maintaining his action or defence. But the general words of this section, and of section 170, are controlled and limited by those of § 171, which declare, that, where the cause of action, or defence, is unproved, “in its entire scope and meaning,” it shall not be deemed a case of variance, within the sections immediately preceding, but a failure of proof; and it is scarcely necessary to add, that such a failure, in all cases, entitles the adverse party to a verdict or judgment. Li the case before us, not only were the defences, in the answer, “unproved, in their entire scope and meaning,” but they were actually disproved, even by the witnesses for the defendants; and not only was the defence, of which proof was received, entirely new and distinct, but it was directly inconsistent with those which the answer alleged. This case is, therefore, much stronger than that of Catlin v. Hanson, (1 Duer, 297,) in which Mr. J. Bosworth held, with the concurrence of his brethren, that, where the defence set up, in the answer, is unproved, “in its entire scope and meaning,” the court, at the trial, has no power, under sections 169 and 170 of the Code, either to direct the pleading to be amended, or the fact to be found according to the evidence. It follows, that there was no evidence before the jury, in this case, upon which they could legally found a verdict for the defendants, and that, upon the only proof legally before them, the plaintiff was entitled to recover.

The cases cited by the counsel for the defendants, as they were decided before the Code, are wholly inapplicable. It is not to be denied, that under the old system of pleading, in an action like the present, the defendant, under the general issue, might give in evidence any matter, as a "bar to a recovery, which tended to show that the plaintiff had no subsisting cause of action when he commenced the suit; and this rule, undoubtedly, embraced proof of payment. (1 Chitty on Plead. 472; Welt v. Ogden, 13 John. 58; Bird v. Caritat, 2 John. 346.) But the Code, by requiring that an answer, in addition to a general or specific denial of the allegations in the complaint, when such a denial is made, shall .state any new matter constituting a defence, when such a defence is meant to be relied on, has effectually abolished the general issue, as formerly understood; and that payment is, in its nature, as truly a matter of defence, as a release, or accord and satisfaction, or duress or fraud, we cannot doubt. Even before the Code, it might always be specially pleaded; under the Code, it must be. (Code, § 149; Kearslake v. Morgan, 5 Term R. 512; 2 John, ut supra.) The only effect of a general or specific denial in an answer of the material allegations of the complaint now is to cast the burden of proof upon the plaintiff, but where the necessary proof is given, if the answer contains nothing more than-such a denial, the plaintiff is at once, and as a matter of course, entitled to a verdict or judgment.

We do not think that the answer in this case contains any denial of any material allegation in the complaint, and as it has, therefore, no resemblance to a general issue, the remarks that I have just made may seem to be unnecessary; but they may not be without use in correcting some misapprehensions, which, notwithstanding the plain language of the Code, apparently still linger in the minds of many of the profession.

The judgment for the defendants is reversed, and there must be a new trial, with costs, to abide the event.


author: By the Court. Bosworth, J.

text:
    Isles v. Tucker.
    In an action between partners, for an accounting, when the complaint alleges, and the partnership agreement states, that the plaintiff contributed $2,250 of capital, and the answer denies that the $2,250 was contributed as capital, and avers that it was to be paid by the plaintiff for an equal interest in the business, that the money was paid on that basis, and that both parties have acted upon the under standing that such was the meaning of the agreement, the allegations of the answer are sufficient to present the issue, whether the agreement was, by mistake, so drawn as not to express the actual agreement of the parties.
    When the written agreement of parties is clear and unambiguous in its terms, clear proof of a mistake is required, to justify the court in holding, that it does not express the actual intent and contract of the parties to it.
    Declarations of a defendant, not made to the plaintiff, are not evidence for the defendant, and declarations of the plaintiff’s agent, who negotiated the contract, made subsequent to the transactions to which they related, and not forming part of the res gesta, are not admissible against the plaintiff on the trial of such an issue.
    (Before Oaklet, Ch. J., and Ddeb and Boswobih, J.J.)
    February 23, 1856.
    On the 27th day of April, 1850, the plaintiff and defendant entered into a copartnership, for the purpose of conducting a dining saloon, or refectory, at 145| and 147 Bowery, in this city, which had been previously conducted by defendant. The partnership was to continue until the first of May, 1853.
    This action was commenced by plaintiff for the purpose of enforcing an accounting on the part of defendant. Five causes of action are set forth in the complaint: The second cause of action arises, as plaintiff claims, out of the fact that defendant converted to his own use the money which plaintiff put into the concern as capital. Defendant admits,'in his answer, the appropriation of this money, and justifies it on the idea that the money in question was paid to him for the purchase of a half interest, and was not put into the concern as capital.
    The action was tried before Mr. Justice Duer, without a jury, on the 5th of November, 1854.
    Without passing upon the other questions at issue, the court, at Special Term, decided that the defendant had a right to appropriate the $2,250 to his own use, and that this sum, paid by plaintiff, was not to be regarded as “ capital.” From this part of said decision plaintiff appealed. The court directed a reference as to the other causes of action.
    The articles of copartnership were recited at length in the complaint. So much of them as is necessary to illustrate the point controverted at the trial reads thus, viz.:
    This agreement, made on the 27th day of April, 1850, between Elihu L. Tucker, of the city of Hew York, the party of the first part, and Catharine Isles, of the said city, the party of the second part, witnesseth, that the parties hereto do hereby agree to form a copartnership for conducting the business, ordinarily conducted in a dining saloon or refectory, to be located at Hos. 145J and 147 Bowery, in said city, and known and designated as the Philadelphia House; that the said business shall be conducted under the firm of E. L. Tucker & Co., and that the said copartnership shall continue until the first day of May, 1853, unless ■ it should be sooner terminated by the mutual consent of the said parties.
    The said party, of the first part, hereby agrees to put in as capital, into the concern, all the furniture and fixtures, which are now on the first and second floors, and in the basement of said buildings, an inventory of which is hereunto attached, and to which reference is made, at a valuation which shall be mutually agreed upon, by and between the parties hereto. And the said party, of the second part, hereby agrees to contribute as capital to the concern, the sum of twenty-two hundred and fifty dollars in cash.
    And the said parties further agree, and in consideration of the covenant herein made, that the profits which may accrue during the existence of this copartnership, shall be equally divided by and between the parties hereto, after deducting all necessary expenses, required for the successful prosecution of the business aforesaid.
    The complaint alleges, that the $2,250, agreed to be paid by the plaintiff, as her share of the capital, was paid as follows:—Fourteen hundred and eighty dollars on the execution and interchange of duplicates of the above agreement, twenty dollars shortly thereafter, and the balance was intended and supposed to be paid by her refraining to draw any share of the profits of the business

      until the defendant, Tucker, had first drawn out and applied to his own use the sum of fifteen hundred dollars, she being under the mistaken idea that that arrangement would settle the account equitably between herself and him.
    The answer of the defendant, among other, contained these allegations, viz.: .
    Secondly. That the plaintiff did not contribute, as capital, to the concern, the sum of twenty-two hundred and fifty dollars, in cash, or any other sum whatever.
    That the meaning of the partnership articles, in this respect, was, that this sum should be regarded as so much to be paid, by the plaintiff to the defendant, for an equal interest in his business, as then existing and established, and all matters and things appurtenant thereto, and that upon this understanding of the said articles the plaintiff and defendant both acted; that no money, paid in by the plaintiff, was paid in upon any other basis.
    That, even though the covenant in the said articles, in this respect, might seem to imply differently, it was not executed or acted upon in that sense, by either the plaintiff or defendant.
    That the plaintiff did pay one thousand four hundred and eighty dollars, in cash, on account of the purchase of an equal interest— with the defendant—in the said business, and that the balance of the said twenty-two hundred and fifty dollars—the sum agreed to be given therefor—was drawn out of her part or portion of the partnership profits, and that all the allegations of the complaint, to the contrary hereof, are untrue, as, or in manner and form as therein made.
    Several witnesses were examined. The nature of the testimony given, by each of them, except that of Alexander W. Smith, is sufficiently stated in the opinion of the court; that of Smith is given, at length, and is as follows:
    Alexander W. Smith, a witness called by the plaintiff, being sworn, proves the execution of paper produced. The paper was then read, and marked Exhibit No. 1, for plaintiff. This was the partnership agreement.
    Being examined, by counsel for defendant, the witness then said: I was employed, by the parties, to draw up the partnership agreement between them; the original oral understanding was, that the sum of two thousand two hundred and fifty dollars should be considered as paid for the acquisition of a half interest in the furniture and fixtures of defendant’s establishment; that parties supposed súch was the provision in partnership articles, and that, under that impression, they carried out their oral understanding, instead of the original reading of the original article.
    To all this the plaintiff’s counsel objected, but the court admitted the foregoing and succeeding evidence, subject to future objection, and the examination proceeded with that understanding. The witness continued: The agreement was executed in duplicate; it was executed at my place of business, 59 Rose street; I drew the papers, at the instance of both plaintiff and defendant; I am not a lawyer.
    Here the counsel for defendant handed a mortgage to witness. The witness said: This mortgage appears to have been executed on the same day with the agreement; that mortgage was drawn by me, with the agreement, and executed on same day with copartnership articles; don’t recollect, if it was executed at same time; I am a subscribing witness. The mortgage was upon the plaintiff’s undivided half of the partnership property, and was given to secure the payment of $750, with interest, on the 1st of March, 1851, and was dated the 27th of April, 1850.
    Here the mortgage was read, and marked Exhibit Ko. 2, for defendant.
    Witness continued: I don’t recollect, if there was any other paper executed; I now think the mortgage was executed two or three days after the agreement; between $1,400 and $1,500, cash, was paid, in my presence, on account of agreement; I don’t know when the partnership terminated; the $750, in mortgage, was the residue of the purchase money; the mortgage for $750 was given to secure the balance of $2,250 capital; I don’t recollect, if any thing was said, as to the value of partnership property; I do not understand its value; don’t remember there was any agreement as to value; don’t recollect, if receipt passed, on payment of the $1,480; Alexander Isles, the brother of the plaintiff, represented her; I represented Tucker, and he was there himself; Miss Isles paid for the mortgage; the partnership articles Tucker agreed to pay for, but did not; I was employed by Tucker to procure him a partner, and was to receive $100 for it; I received $50; it was paid me for procuring Tucker a partner.

      Being examined by Mr. Clinton, in reply to the question, Were any instructions given by Mr. Tucker, before you drew the agreement ? the witness replied: There were; those instructions are embodied in that paper; I submitted them to Tucker, two or three days before it was executed; Tucker said he wanted to submit it to an attorney; I left it with him. The agreement, before referred to, marked Exhibit 1, for plaintiff, being here produced, the witness said: Both parties examined the paper, for an hour, before execution, on the morning it was executed; the copy given to Tucker was an exact copy of the agreement, except that the paper was originally drawn for one year, and extended to five; Tucker made no other objection, and I think Mr. Isles made that.,
    Being again examined by counsel for the defendant, he said: My father, Silas C. Smith, Mr. Munson, and Alexander Isles, were present at the execution of the agreement; Munson read one copy, and I the other, aloud; I never saw Miss Isles before the execution of agreement; Mr. Isles negotiated with me for Miss Isles—acted as agent; saw Miss Isles before the execution of agreement; I saw her a month or two afterwards; Alexander Isles, her brother, negotiated with me, for her, and represented her; he brought her there, on the morning these papers were consummated; I was frequently in the establishment after the partnership commenced; never saw her in the business; Alexander Isles was there acting; he was behind .the bar receiving money.
    Smith was .subsequently further examined, but testified to no new fact.
    The testimony having been concluded, the cause was summed up, by the respective counsel, and the court, on the 6th of January, 1855, made the following order:
    “ This cause having been duly called on for trial before the Hon. John Duer, one of the Justices of this Court at Special Term, without a jury; and the court having elected to try only the issue raised by the pleadings on the question of capital, and intimated that all the other questions should be tried before a referee; to which course the counsel of the respective parties assented—"
    After hearing the testimony of the witnesses of the respective ¡parties and their counsel, and mature deliberation having been had, it is adjudged that the sum of twenty-two hundred and fifty dollars was the consideration to be paid to the defendant for the one-half or equal interest with the defendant in his business as then existing and established, and not as an addition to the capital ; and that the defendant had a legal right to apply the whole sum of twenty-two hundred and fifty dollars to his personal use.
    “ It is ordered, that all the questions of account, and such other questions as are put in issue by the pleadings, be referred to John L. Mason, Esq., to take proof thereof, and report the same, with his opinion thereon, to this court.
    (A copy,)
    “ Geo. H. E. Lynch, Clerk.”
    Whereupon, the plaintiff appealed from so much of the above order as adjudges “ that the sum of $2,250 was the consideration to be paid to the defendant for the one-half or equal interest with the defendant in his business as then existing and established, and not as an addition to the capital; and that the defendant had a legal right to apply the whole sum of $2,250 to his personal use.”

      H. L. Clinton, for plaintiff.

      R. D. Holmes, for defendant.
   By the Court. Bosworth, J.

The plaintiff seems to have tried this action on the theory, that the evidence given by the defendant was open to the objection, that its object was to contradict, by parol evidence, the clear terms of a written agreement.

The evidence, if admissible for any purpose, was admissible to establish the fact, that the executed contract was, by mistake, so drawn as not to express the contract as it had been actually agreed upon. Assuming that the pleadings were such as to authorize the reception of such evidence, there was none given except that of A. W. Smith.

He does not state what the parties said when he was instructed to draw the contract. He says the mortgage “ was given, to secure the balance of $2,250 capital.” He assumes' to state what “ the original real understanding was,” but on what facts or declarations of the parties that opinion is based, he does not state. That can not be said to be enough to justify the conclusion, that the written contract, which is clear and unambiguous in its terms, does not express the true meaning and intent of the parties.

Whether the $2,250 was to be contributed as capital, or was to be paid for an undivided half of the stock, fixtures, and good-will, is a question to be ascertained. The contract says it was to be contributed as capital. That is higher and more satisfactory evidence than any thing contained in the evidence of Smith. The form and terms of the mortgage, with other evidence of what the parties to the contract said, at the time of concluding it, in connection with evidence of the practical construction given to it by their subsequent acts, might establish beyond doubt the fact of a mistake. No such declarations or subsequent acts are proved.

The testimony of Eagleson, much of that given by Hays, most of Johnson’s, and of Foster’s, and that of Hunter, was incompetent. It consisted either of declarations of the defendant, which could not be evidence in his own favor, or of declarations of the plaintiff’s agent, made subsequent to the transactions to which they related, and forming no part of the res gesta.

We think the allegations of the answer sufficient, to present the issue, whether the agreement was, by mistake, so drawn as not to express the actual agreement of the parties.

That it is advisable, that the order made should be set aside, and the whole action be referred to determine all the issues joined in it. If neither the $1,500 first paid or advanced by the plaintiff, nor the $1,500 of profits subsequently drawn out by the defendant, are charged to him on the books of the company, and if no credit to the plaintiff is found there, by reason of the $1,500 advanced, those facts, in connection with the mortgage and its terms, would be very strong evidence that the $2,250 was not to be advanced as capital, but was to be paid as the contract price for an undivided interest.

The order must be reversed, that, upon an application at Special Term, the whole issue may be referred.