Astie v. Leeming — 3 Abb. N. Cas. 25

Majority

p. 25

ASTIE v. LEEMING.

New York Supreme Court, First Department; Cham bers,

August, 1877.

Headnote

Assignor and Assignee.—Evidence.—Injunction.—Pleading.— Notice.

An answer, the verification of which does not indicate what denials are on positive knowledge and what on information and belief,— especially if part are of such a nature that they must have been on

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information and belief,—cannot be deemed a denial of all the equities of the complaint, so as to entitle the defendant to a dissolution of an injunction.^[1]

Where assignees of a business know that their assignor has an agent acting under some contract in relation thereto, it is sufficient notice to put them upon their inquiry to ascertain the terms of the contract.

Defect of parties (not appearing on the face of the complaint) must ' be set up in the answer, or the objection will be deemed waived.

Motion by defendants to vacate an injunction.

This action ivas brought by Hilarié Astie against Thomas Leeming and others.

One Henri Nestlé was, prior to the month of August, 1870, the manufacturer of an article of food, called “Farine Lachie,” in Switzerland. At the above date, he entered into a contract with the plaintiff giving him the exclusive right to sell this product in all Nor Hi America, and bound his successors by that contract.

Early in the year, 1875, Nestlé sold out his business to Messrs. Boussi, Monnerat and Marquis, as was claimed by the plaintiff, or to a corporation in which these gentlemen were members of the board of directors. That the sale was not to a corporation would seem to be evidenced by the fact that Mons. Monnerat, in a letter of March 35, 1875, to the plaintiff, spoke of ‘1 our new firm having taken possession of the factory, &c.” Subsequently, the defendants Leeming and Woodruff were appointed the agents for the ' sale of the article in the United States, by the successors of

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Henri Nestlé. This action was brought to restrain the defendants Leeming and Woodruff from selling, and from acting as agents for the sale, and an injunction was obtained.

The defendants Leeming and Woodruff, who alone appeared, claimed that' the injunction should be dissolved, upon the grounds:

1. That all the equities of the complaint were denied by the answer.

2. That Nestlé never assigned his business to Koussi, &c.

3. That the plaintiff has failed to perform his contract with Nestlé.

4. That a new and different contract was entered into between the successors of Nestlé and the plaintiff.

5. That the successors of Nestlé are not bound by his contract with the plaintiff, not having any notice of the same at the time of the transfer of the business-to them.

Thomas S. Moore, for the motion.

Coudert Brothers, opposed.

[After stating the facts.]—The first ground is not well taken, because the equities of the complaint are denied on information and belief, in the answer, and the verification gives no guide whatever as to what allegations are claimed to be denied on positive knowledge, and what on information and belief. Most of the denials must have been upon information and belief, because the facts could not possibly have been within the personal knowledge of the defendant verifying the answer.

The denial in the answer, to the effect that at the time of the transfer, the successors of Nestlé had no knowledge of the existence of the contract mentioned n the complaint, may be entirely true ; but that the

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said successors knew that the plaintiff was acting as the agent of Nestle under some contract, is amply evidenced by the correspondence, and such being the fact, it was their duty to ascertain the terms of that contract.

As to the second ground of objection, it is sufficient to say that Nestlé assigned his business to the principals of Leeming and Woodruff, and they by their answer must raise the objection that the necessary parties are not before the court, or otherwise, that objection must be deemed waived. No such objection has been raised by the defendants’ answer in this case.

As to the third objection, the correspondence shows that the successors of Nestlé made some complaint that the plaintiff had not complied with his contract after they had desired to get rid of him, and that the plaintiff claimed that he had performed his contract, and the particulars of the performance are given; and this court will not hold that contract broken except upon decidedly more conclusive evidence than has been presented upon this application.

As to the fourth objection, it will be sufficient to say, that the allegation in the answer of the entering into a new agreement between the plaintiff and the successors of Nestle, is evidenced only by the affidavit of Constant Bubely, who swears that he was told by Messrs. Monnerat and Roussi, that such new agreement had been entered into in December, 1875, in Switzerland. Such evidence, of course, is entirely insufficient to sustain an affirmative allegation of an answer upon a motion of this description.

The correspondence does not show that the plaintiff ever waived any rights under his contract with Nestlé, except possibly as to Canada. It seems to me, that the motion to vacate the injunction must be denied, with costs.