Rowley v. Swift — 51 N.Y. St. Rep. 377

Majority

p. 377

Charles M. Rowley, Resp’t, v. Thomas J. Swift, App’lt.

(Supreme Court, General Term, Second Department,

Filed February 13, 1893.)

Headnote

Pleading — Complaint—Agreement to repay amount paid for stock.

A complaint alleging a payment for certain stock, and that defendant gave a written agreement to make good the amount at any time after one year from date, sets forth a good cause of action, whether the transaction he regarded as one for a reconvevanee of the stock on request after one year or as a loan upon the stock for one year.

Appeal from judgment entered upon order overruling demurrer to complaint.

Henry M. Taylor, for app’lt; J. H. Miller (E. Wells, of counsel), for resp’t.

This is an appeal from a judgment entered on an order overruling a demurrer to the complaint based upon the ground that no cause of action was stated therein.

p. 378

The court below, in deciding the case, said : “ The complaint states that the plaintiff paid and advanced to the defendant $1,250 for certain stock. That as part of the transaction the defendant gave plaintiff a written agreement that he would make good that amount to the plaintiff at any time after the date óf one year from the transfer of the stock and the receipt by him of the money.

“ Whether this transaction was one for a reconveyance of the stock upon request after the year, or was a loan upon the stock payable at the end of the year is immaterial. A good cause of action existed in either case.” This memorandum expresses the point in a nut shell.

It is clear that the agreement was to make good $1,250 after one year. What did the parties mean by the words “ make good,” unless they meant that defendant should pay that amount to the plaintiff ? Nothing but that could have been intended.

The consideration was the advance to the defendant of that amount. If the transaction had been an absolute purchase and sale of the stock, there would have been no agreement in writing to make good to the plaintiff the money advanced. If the memorandum did not express the whole agreement between the parties, or any condition was attached to it, it was subject of proof upon the trial on the part of the defendant.

The plaintiff averred enough to make a prima facie case, By counting upon the promise in writing to pay the $1,250 at the end of a year; the promise being absolute, and referring solely to the money advanced. The promise does not refer to the stock at all.

The complaint, possibly, is inartificially drawn, but it is not necessary for a pleader to state the legal effect of the facts alleged, as the court will render such judgment as the facts, when proved, warrant. Hemmingway v. Poucher, 98 N. Y., 281 -287.

And the court is not precluded from giving such a judgment by the plaintiff averring an erroneous conclusion of law. Chatfield v. Simonson, 92 N. Y., 218 , and cases cited.

The advance of the money, the delivery of the stock, and the promise to repay or make good the money after one year constituted one transaction.

These facts, when analyzed, mean that as a consideration for the advance of the money, that fifty shares of stock should be delivered, and that after one year the defendant should make good to the plaintiff the money received; if there was any agreement outside of the memorandum that plaintiff should return the stock, or its value be estimated, it was available as matter of defense.

ii is true the agreement does not say how he shall “ make it good,” but admitting by demurrer that he made such a promise, the presumption is that he should make it good in the only practicable way, by paying that amount of money.

Judgment affirmed, with costs.

Dykmakt, J., concurs; Barnard, P. J., not sitting.