De Bautte v. Curiel — 49 N.Y. St. Rep. 622

Majority

p. 622

Louis P. De Bautte et al., Resp’ts, v. Herman A. Curiel et al., App’lts.

(New York Superior Court, General Term.

Filed January 3, 1893.)

Headnote

Pleading—Money loaned.

In an action for money loaned and advanced, the contention of defendants that the money was borrowed for an illegal purpose is in the nature of new matter, avoiding a contract, and must he pleaded.

Appeal from a judgment entered on a verdict of a jury in favor of the plaintiffs, and from an order denying a motion for a new trial.

E. J. Myers, for app’lts; M. S. Gutterman, for resp’ts.

The action is for “money loaned and advanced to the defendants,” a co-partnership firm doing business under the title of “ The United Brewers’ .Company.” The answer admitted the partnership of the defendants under this title, and denied the other allegations of the complaint It appears by the evidence that the defendants were an importing wine house and .that their business was to sell different brands of wine.

One Farmer was a traveling salesman employed by the defendants, and was in the habit of spending large amounts of money to boom their wines. About the end of April or beginning of May, 1890, Farmer, as the representative of the defendants, appointed the plaintiffs agents in New Orleans for the St. Marceaux, a brand of champagne controlled by the defendants.

It also appears that the defendants told Farmer if he ran short of money to draw on them for whatever was needed to meet requirements, and that his drafts would be honored. Acting on this authority Farmer had a succession of transactions in which money was borrowed and drafts drawn, and in every instance but the present these drafts were honored and the moneys repaid.

There is evidence also that Farmer’s authority had been revoked before the loan in suit was made; but there is further evidence ■showing that, notwithstanding this so called revocation, the defendants had evidently experienced a change of mind, for they ■continued to honor Farmer’s drafts for loans made up to the time ■of the very transaction which gives rise to the present litigation.

The case, therefore, turned upon the question whether at the time the loan was made Farmer had subsisting authority to con

p. 623

tract the obligation and bind the defendants for its performance. This question was fairly submitted to the jury, who found for the plaintiff, upon evidence satisfactorily sustaining the finding. This practically disposed of the entire case, and there is nothing left but to consider the exceptions taken, many of which are trivial and without merit.

The defendants contend that the money was borrowed by Farmer for an illegal purpose. Such a defense is in the nature of new matter avoiding a contract, and must be pleaded. May v. Burras, 13 Abb. N. C., 384 ; Hopkins v. Ensign, 11 St. Rep., 85 ; Honnegger v. Wettstein, 94 N. Y., 252 ; Milbank v. Jones, 127 id., 370 ; 38 St. Rep., 910 ; O' Toole v. Garvin, 1 Hun, 92 , and kindred cases.

We have failed to discover any error in admitting or excluding evidence, and the judgment and order appealed from must be affirmed, with costs.

Freedman and Gildersleeve, JJ., concur.