Rowley v. Swift , 67 Hun 95 ( 1893 )

PRATT, J.

This is an appeal from a judgment entered on an order overruling a demurrer to the complaint, based upon the ground that no cause of action was stated therein. The court below, in deciding the 'case, said:

“The complaint states that the plaintiff paid and advanced to the defendant $1,350, for certain stock; that, as part of the transaction, the defendant gave plaintiff a written agreement that he would make good that amount to the plaintiff at any time after the date, one year from the transfer of the stock, and the receipt by him of the money. Whether this transaction was one for a reconveyance of the stock upon request after the year, or was a loan upon the stock, payable at the end of the year, is immaterial. A good cause of action existed in either case. ” ‘

This memorandum expresses the point in a nutshell. It is clear that the agreement was to make good $1,250 after one year. What did the parties mean by the words “make good,” unless they meant that defendant should pay that amount- to the plaintiff? Nothing but that could have been intended. The consideration was the advance to the defendant of the $1,250, and the note or memorandum refers specifically to that amount. If the transaction had been an absolute purchase and sale of the stock, there would have been no agreement in writing to make good to the plaintiff the money advanced. If the memorandum did not express the whole agreement between the parties, or any condition was attached to it, it was subject of proof upon the trial on the part of the defendant. The plaintiff averred enough to make a prima facie case by counting upon the promise, in writing, to pay the $1,250 at the end of a year, the promise being absolute, and referring solely to the money advanced. The promise does not refer to the stock at all. The complaint possibly is inartificially drawn, but it is not necessary for a pleader to state the legal effect of the facts alleged, as the court will render such judgment as the facts, when proved, warrant, (Hemingway v. Poucher, 98 N. Y. 281-287;) and the court is not precluded from giving such a judgment by the plaintiff averring an erroneous conclusion of law, (Chatfield v. Simonson, 92 N. Y. 218, and cases cited.) The advance of the money, the delivery of the stock, and the promise to repay or makegood the money after one year, constituted one transaction. These facts, when analyzed, mean that, as a consideration for the advance of the money, 50 shares of stock should be delivered, and that, after one year, the defendant should make good to the plaintiff the money received. If there was any agreement outside of the memorandum that plaintiff should return the stock, or its value be estimated, it was available as matter of defense. It is true the agreement does not say how he shall “make it good;” but, admitting by demurrer that he made such a promise, the presumption is that he should make it good in the only practicable way,—by paying that amount of money.

Judgment affirmed, with costs.