NEW YORK NEWS COMPANY v. NATIONAL

STEAMSHIP CO.

148 N. Y. 39. [1895.]

O'BRIEN, J. The complaint in this action alleged that the defendant was indebted to the plaintiff in the sum of $591.18, a balance due from defendant for work, labor and services in advertising for and at the special instance and request of the defendant. The defendant, by its answer, denied this allegation. The plaintiff, on the trial, gave proof tending to establish an agreement between the parties to the effect that the plaintiff should do certain advertising for the defendant, and he paid therefor in the tickets of the defendant; that plaintiff did perform the work in advertising, and had received thereon a certain quantity of tickets, but leaving still due the amount stated in the complaint; that the plaintiff had demanded the balance of the bill from the defendant in tickets, but the demand was refused. The plaintiff claimed that these facts established a money indebtedness from the defendant. The rule in this state seems to be that, where a party agrees to pay a specific sum, or, as in this case, the value of the services in some specific articles of property, and upon demand refuses or fails to deliver the property, his obligation is thereby converted into one for the payment of money. 1 Sedg. Dam. (8th ed.) § 280; Gleason v. Pinney, 5 Cow. 152; Smith v. Smith, 2 Johns. 235; Brooks v. Hubbard, 3 Conn. 58. There was some conflict in the evidence as to the facts, but the court submitted all the questions to the jury, and the verdict must be taken as establishing in plaintiff's favor, the performance of the work at the price alleged, the agreement to pay in tickets, and the refusal to do so, and the consequent obligation to pay in money.

The only point urged by the defendant in support of the appeal which it is necessary to consider is the contention that the plaintiff set out in the complaint one cause of action and recovered upon another and different cause of action. The plaintiff has stated the facts constituting the cause of action, not as they actually existed, but according to their legal effect. In most cases either mode of pleading, at the option of the party, is correct. Bennett v. Judson, 21 N. Y. 238; Farron v. Sherwood, 17 N. Y. 227; Barney v. Worthington, 37 N. Y. 116. In pleading

facts according to their legal effect, it may sometimes happen that the opposite party is left in the dark as to the proof which he may be required to meet at the trial, but, ordinarily, this difficulty can be avoided by motion, when necessary, to make the pleading more definite and certain. In this case, if the defendant had any doubt as to the identity of the claim that it was required to defend, a simple demand for a bill of particulars, or a motion, would make everything clear. The material part of the complaint was the allegation of a money indebtedness by defendant to plaintiff, and that allegation was supported by proof of the agreement to perform the work for payment in tickets, the performance of the work, and the refusal to deliver the tickets. In other words, the fact pleaded, according to its legal effect, was proved by proof of the facts as they existed. So there was no variance that the defendant can complain of. The other questions discussed relate to the proofs given. It is not very clear, but its sufficiency and interpretation were for the jury. The judgment must, therefore, be affirmed. All conJudgment affirmed.

cur.

WIEDE v. PORTER.

22 Minn. 429. [1876.]

The complaint alleges the sale of a pair of horses by defendant to Albert Shaeffer, with warranty that they were good roadsters, good and true workers in harness, and not balky; a breach of the warranty, and damages resulting therefrom to Shaeffer, and an assignment of the cause of action from Shaeffer to the plaintiff. The answer puts in issue the sale, the warranty, and the assignment. At the trial in the court of common pleas of Ramsey county, before BRILL, J., the plaintiff testified that he purchased the horses in question from the defendant, and traded organs and melodeons for them. His counsel then offered to prove that, in trading for the horses, the plaintiff was acting for Albert Shaeffer, who was the assignee of Wiede & Ross, for the benefit of their creditors, and that the horses were paid for out of property held by Shaeffer as such assignee, to be followed by proof of the warranty and breach, and assignment of the demand to plaintiff. The evidence offered was objected to

as immaterial and not pleaded, the objection was sustained, and plaintiffs excepted. The plaintiff then offered in evidence the written assignment from Wiede & Ross to Shaeffer, to be followed by the proof already offered, which was objected to by defendant "as immaterial, irrelevant and not pleaded," and was rejected, plaintiff excepting. The witness then testified, “I was acting for Albert Shaeffer, assignee of Wiede & Ross, in making the trade with defendant for the horses." His counsel then asked him what was said by defendant in regard to the character of the horses at the time of the trade, to which the defendant objected as "immaterial, irrelevant, and not pleaded, and because of the last answer of the witness that in making the trade he was acting for Albert Shaeffer, assignee of Wiede & Ross." The objection was sustained, as was also an objection to any further testimony on the part of plaintiff relating to the trade, if Shaeffer, in making the trade, was acting as assignee of Wiede & Ross, the plaintiff duly excepting. The plaintiff then rested his case. The court directed a verdict for defendant, on which judgment was entered, and the plaintiff appealed.

CORNELL, J. This case comes before us upon exceptions to the ruling of the court upon the admissibility of certain testimony offered under the issues made by the pleadings. The real question presented is whether, upon an issue raised by a denial of the execution of a contract of sale and warranty, alleged to have been made between defendant and one Shaeffer, it was competent to prove that such contract was made by the duly authorized agent of Shaeffer; in other words, when the contract of the principal, which constitutes the foundation of the cause of action, is made through the intervention of an agent, is it necessary, in pleading it, to aver that fact and the authority of the agent?

Issuable facts alone are required to be stated in a pleading, and those according to their logical and legal effect. In this case the fact traversed by the answer, the proof of which would support the action, was the execution of the particular contract. If it was entered into by the party, its effect was the same, whether done by the principal personally or by his authorized agent. In either case it was the contract of the principal. The complaint was sufficient to allow the evidence offered, tending to show that the alleged contract was, in fact, the contract for

Shaeffer, and the exclusion of such evidence was error, for which a new trial must be granted.*

Judgment reversed and new trial ordered.

The plaintiffs, in each of these cases, appealed from an order of the circuit court modifying judgment in their favor which had been entered by the clerk. The case will appear from the opinion.

PAINE, J. These three appeals present the same question, and will be disposed of together. The actions were brought for a flowing of the lands of the plaintiffs by means of a dam erected and maintained by the defendants. The litigation has already been twice before this court. In Newell v. Smith, 15 Wis. 101, it was decided that the act purporting to allow the defendants to flow the lands of others, was unconstitutional, because it did not make any adequate provision for compensation. In Cobb v. Smith, 16 Wis. 661, it was decided that the plaintiffs were not entitled to maintain an equitable suit to prevent the reconstruction of the dam, by reason of their long acquiescence in its maintenance, and in the erection of valuable mills and improvements depending on it for their power. And it was said that for the damage occasioned by the flowing, the plaintiffs had "their common-law remedy."

It seems that the complaints were then amended, so as to turn them into actions for damages, and the cases proceeded to trial, and the plaintiffs had verdicts fixing the amounts of damages respectively. On these verdicts the counsel for the plaintiffs procured the clerk to sign judgments, not only for the damages and costs, but also directing the sheriff to abate the dam. Applications were then made by the defendants to set aside the latter provision in each judgment, upon affidavits showing substantially the same facts as to acquiescence and the erection of

*Compare Lewis v. Hatton, 26 S. W. (Tex.) 50.

valuable mills, etc., that appeared in the equity case above referred to, and also showing that this feature of the judgment was a surprise upon the defendants, who did not suppose that any such relief was sought in the action, and that the attention of the court was not called to it, nor was that of the defendant's counsel, and that the clerk supposed, when he signed the judgments, that they were only judgments for the damages and costs in pursuance of the verdicts. The court below granted the applications, and from those orders these appeals are taken. Its decision was based entirely, as appears from the opinion printed in the case, upon the decision of this court in the equity case above cited. And the counsel for the appellants have shown, that it does not follow from that decision that the action of the court below, now under consideration, was proper. There is undoubtedly a wide difference between a court of equity saying that it will not lend its aid to enforce a legal right, where there are equitable reasons for its refusal, and a court of law saying that a party who recovers in an action at law shall not have such a judgment as the law directs. In the one case the court has a discretion, based upon those equitable principles and considerations upon which the system of equitable jurisprudence was built up, which entitles it to refuse its peculiar relief in cases where it would cause oppression and injustice. But a court of law has no discretion, resting upon such considerations, to refuse to any party such a judgment as the law provides for, in an action wholly at law. If, therefore, these actions, in the form which they finally assumed, are to be regarded, as the court below intimated, as actions for a private nuisance, within the meaning of section 1, chapter 144, R. S., then I do not think it would follow that the plaintiffs were not entitled to the judgment there provided for, because this court had decided, that, for the reasons already mentioned, a court of equity would not interfere by injunction to prevent the reconstruction of the dam after it had been carried out by a flood.

But I do not think these actions should be regarded as actions for a private nuisance, within the meaning of that section. The injury complained of is undoubtedly a private nuisance, and the plaintiffs might have proceeded for the purpose of abating the nuisance, if they had seen fit. But they were not bound to do so. They were at liberty to bring their actions merely for the recovery of the damages; and this, I think, is what they have