Commercial Union Assurance Co. v. Bauer — 33 N.Y. St. Rep. 827

Majority

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The Commercial Union Assurance Company, Limited, of London, Resp’t, v. Henry C. Bauer, Impl’d, App’lt.

(Supreme Court, General Term, First Department,

Filed October 24, 1890.)

Headnote

Bond—Evidence.

In an action on a bond for the faithful performance of duty by an agent, the complaint alleged that defendants duly signed, executed and delivered such bond, describing it, and that it was sealed with their seals. The answer alleged that defendant signed a paper substantially of the tenor and effect set forth in the complaint, and left it with such agent, but that defendant had no knowledge or information sufficient to form a belief as to whether it was duly signed and sealed by defendants or duly delivered to plaintiff, and that said paper was the same alleged in the complaint. Held, that the answer admitted the execution of the bond, and that evidence to show that it was not filled out or sealed when defendant subscribed it was not admissible.

Appeal from a judgment recovered on a verdict directed by the court.

Robert IS. Connelly, for app’lt; John Notman, for resp’t.

The verdict was directed for the amount owing by James W. Wheaton for moneys received by him as the plaintiff’s agent and which he had failed to pay over. The defendant was held liable for the amount under the obligations of a bond executed by himself and the other defendant as sureties for the agent The amount for which the agent was in default was proved by his reports and accounts, and that proof was not controverted upon the trial.

But the defendant’s counsel propounded questions to him as a witness in his own behalf which were expected to obtain answers showing that the bond was not filled out nor sealed when he subscribed his name to it. These questions were objected to by the plaintiff’s counsel, and the answers were excluded by the court. The evidence was considered to be inadmissible under the issues framed by the defendant’s answer. And whether that was the correct view to be taken of the pleadings is the sole point raised by the appeal.

That part of the complaint which alleged the execution of the bond is as follows:

Second. That on about the 28th day of January, 1886, the said defendants duly signed, executed and delivered their certain bond, or written obligation, to the plaintiff, dated on said last mentioned day and sealed with their seals, wherein and whereby they jointly and severally bound themselves, their respective heirs, executors and administrators to this plaintiff in the sum of $2,000, upon the condition (it being recited in said bond that “said James Vr.

p. 828

Wheaton has been appointed agent of the plaintiff at Brooklyn, E. D., in the county of Kings, New York,”) that if the said James W. Wheaton should well and truly discharge his duties as such agent and should pay over to the plaintiff all funds thereto received by him as such agent, and should well and truly conform to and obey all the regulations of the plaintiff communicated to him from time to time touching the issuing of policies, the collecting of premiums thereon and all other matters pertaining to the business of the said agency, then the said bond or obligation should be null and void, otherwise to remain in full virtue, force and effect; and that it was further provided in said bond that proof of the plaintiff’s incorporation was waived.

And the entire answer to these allegations was, that on or about the 28th day of January, 1886, this defendant signed a paper substantially of the tenor and effect set forth in said complaint, and left the same with one James W.Wheaton, but this defendant has xno knowledge or information sufficient to form a belief as to whether the same was duly signed and executed by the defendants, or whether the same was duly delivered to the plaintiff as alleged in said complaint, and said paper is the same alleged in the complaint to be the bond or written obligation of defendant, and no other.

The residue of the complaint, as well as of the answer, related to the fact of Wheaton’s default, and the amount of it. These matters were distinctly put in issue.

But it is reasonably clear that the answer was not intended to deny the execution of the bond by the defendant. It contains a distinct admission that he signed an instrument of the tenor and effect of that set forth in this part of the complaint, without any denial that it had been sealed by him. And that omission to deny was of itself an admission that it had been sealed by him. The admission expressly made was that the instrument he signed was substantially of the tenor and effect set forth in the complaint, and that, as the plaintiff had described it, was a completed instrument, filled out and sealed by the defendant. He, therefore, was not at liberty to controvert these facts, or either of them, by proof at the trial. By his answer he had, in its legal effect, admitted them, and had thereby excluded his right to disprove them by evidence.

The judgment consequently was right, and it should be affirmed.

Van Brunt, P. J., and Brady, J., concur.