Amsden v. Jacobs

Van Brunt, P. J.,

dissenting, claimed that the defendant was not injured by the exclusion of the evidence, for the reason that there was no proof showing that the plaintiff had a similar intention. It thus distinctly appears, not only from the concurring opinion of Daniels, J., but by the dissenting opinion of Van Brunt, P. J., that in order to render the evidence of any value it must be shown that the intention sought to be shown was known to the plaintiff. And in the case of Kenyon v. Luther, (Sup.) 4 N. Y. Supp. 498, Martin, J., in delivering the opinion of the court, says:

“While, In the absence of evidence to the contrary, an illegal intent will not be presumed, but an opposite presumption will arise, * * * yet we think the defendants were entitled to prove that their intention was simply to pay differences, and not purchase wheat. * * * This might not have been sufficient to have sustained their defense, * * * but it was a step in that direction, which they should have been permitted to take.”

Here we have a concession that the evidence would not have been sufficient to establish the defense. In the case under review, as we have seen, the defendant’s counsel, in respect to the evidence offered, says that he did not expect to prove that defendant’s intention was known to the plaintiff, thus shutting the door to that class of evidence. The evidence, if it had been received, would have constituted but a step in the direction of the defense alleged, and would have been insufficient to establish it; and, inasmuch as he had no intention or expectation of showing that the plaintiff had knowledge of such intent, it became worthless testimony, for one party cannot evade a contract, or establish its invalidity, by maintaining a secret intention to evade it, unknown to the person with whom he is contracting. The judgment appealed from should be affirmed.

DWIGHT, P. J., and LEWIS, J., concur. BRADLEY, J., not sitting.