Wood v. Whiting , 1855 N.Y. App. Div. LEXIS 141 ( 1855 )

By the Court, Johnson, J.

The defendant in his answer alleges that the orders or demands specified in exhibits A and B, were received by him on account of Gaul & Bryan, to collect, and to apply the proceeds to the payment of a demand of ■the Winsted Manufacturing Company against Gaul and Bryan, for scythes sold and delivered to them. On the trial he offered to prove this by parol, which was objected to by the plaintiff, on the ground that it contradicted the writing. The objection was overruled, and the plaintiff excepted. This, I think, was error. The writings are clearly more than mere receipts. They are agreements by which the receipt of the demand for collection is admitted and a stipulation given, that the avails shall, when collected, be paid over to the plaintiff’s assignor or to his order.

The defendant undertook to collect for Gaul, and to pay «over to him or to his order, and parol evidence, tending to show that they were received as the demands of Gaul & Bryan for the purpose of being collected -and paid over to the manufacturing company, was in direct conflict with the plain terms and import of the written stipulations. The parties had the right to make this arrangement in regard to these demands, and the defendant having entered into it, cannot contradict or vary it by parol, and show that he received them, not for the purpose expressed, but for some other, entirely different.

The agreement, signed H. Gaul & Co., by which it was agreed that they should hand over to the defendant, as agent for the manufacturing company, orders obtained, to the amount of scythes furnished, for collection, was prior in point of time, and the defendant clearly had no right to pay the avails of the orders or demands in question, or apply them under that agreement, after having given the stipulations upon which this action is brought.

The plaintiff having purchased these claims against the defendant in good faith, I think the latter is estopped from saying that the agreement was different from what it appears to be upon its face. It would operate as a fraud upon the plaintiff. - It is true that the plaintiff, as assignee, took subject to all the equities between the defendant and the assignor, existing at the time of the assignment; but there are no equities which operate to defeat the express agreement. No fraud or mistake as to facts is alleged in the answer; but the whole defense, in substance, consists in this, that the agreement under which the demands were received for collection was different, in fact, from its terms and legal import.

[Monroe General Term, December 3, 1855.

Again; the allegations in the complaint are none of them directly denied. No issue is taken upon the substantive allegations in the complaint, and they must be taken to be admitted, unless certain other facts stated in the answer, inconsistent with those alleged in the complaint, are to be construed into a denial. But this will not answer. __ The code, § 168, provides that every material allegation in a complaint, not specifically controverted by the answer, shall, for the purposes of the action, be taken as true. Merely making a counter statement, or giving a different version of the matter from that contained in the complaint, without denying the allegations therein contained, is not specifically controverting such allegations,

I am of 'opinion, therefore, that the plaintiff was entitled to judgment upon the pleadings, alone.

Judgment reversed and new trial ordered, with costs to abide the event.

Welles, Selden and Johnson, Justices.