Paige v. . Willet

Upon the trial of this cause, it would seem to have been the effort of counsel on both sides, or at least such was the result of their efforts, under a cloud of testimony, to obscure the real merits of the controversy. The question in issue was a very simple one, presented directly by one or two allegations in the complaint, not only not denied, but distinctly admitted by the answer, and all beyond these, both in the pleadings and the evidence, seems to me to have been quite superfluous. The action was to recover the balance alleged to be due on an execution issued upon a judgment recovered by the plaintiffs against Lewis O. Wilson and others, and which had been delivered for collection to the late sheriff of the city and county of New York, who was the original defendant in this suit. The complaint avers the recovery of the judgment on the 5th day of August, 1858, for the sum of $8,753.36, and the delivery of an execution thereon on the same day to the sheriff. It then avers, in the fourth clause or subdivision of the complaint, that the sheriff, by virtue of such execution, levied on the personal property of the judgment debtor, Wilson, and "collected, for the use of the plaintiff, the sum of $8,753.36, with interest thereon from the date of said judgment, besides his lawful fees and poundage." It also avers a return of the execution on the 29th of *Page 29 November, 1859, and the payment to the plaintiffs' attorneys of the sum of $8,753.36, and no more, and which was paid to and received by them on account of the amount due upon the judgment for principal and interest, and it winds up by averring that the plaintiffs have sustained damages by reason of the neglect to pay over the money thus received, and demands judgment therefor. There are other matters stated in the complaint, but, in view of the question really presented, I deem them entirely immaterial and requiring no special notice. The answer of the defendant, while denying any knowledge, etc., of the recovery of the judgment, contains the following admission: "The defendant admits that he received a paper purporting to be an execution based upon the alleged judgment, and that he collected thereon the amount as mentioned in the fourth subdivision of said complaint." After denying other matters stated in the complaint, the answer then sets up, by way of partial defense, that, in consequence of certain motions and proceedings in the courts, the defendant was stayed and restrained from paying in any of the said moneys for a certain period while these motions were pending; and, by way of further answer, that, by virtue of an order of court, he had paid over to the plaintiffs the sum of ninety dollars toward any amount which might remain or be due to them under and by virtue of said execution. Upon this state of the pleadings, the parties went down to trial. All the plaintiffs were required to prove to entitle them to recover was the judgment and execution, its receipt and collection by the defendant, and the balance due after allowing the payment of November 29, 1859. This was done, and the plaintiffs furthermore, and quite unnecessarily, it seems to me, introduced the deposition of Joseph D. Bates, proving the circumstances under which he paid over the sum of $15,544.15 to Cornell, the deputy sheriff, who seems to have held certain attachments upon the property of Wilson, one of the judgment debtors, and also proved the service of notices upon the defendant to return the execution in favor of the plaintiffs, and then rested. *Page 30 The defendant's counsel then moved to dismiss the complaint upon five grounds, every one of which proceeded upon an assumption entirely at war with, and utterly disproved by, the express admissions of the answer, and the proof furnished by the defendant himself in the receipt indorsed upon and returned with the execution, and the motion was very properly denied by the court. The defendant then went into a course of proof touching various proceedings in the courts to set aside and vacate the attachment which had been procured by the plaintiffs, showing also the issuing of several other attachments by other parties, the orders of the courts upon the motions above mentioned, and other proceedings by the plaintiffs to compel the defendant to pay over the moneys claimed of him, all of which seem to have resulted in nothing but an order that the defendant pay ninety dollars to the plaintiffs, and which payment was proved to have been made, and, having thus accumulated a mass of testimony, the most of which was entirely outside of the pleadings, and tended only to confuse the case, wound up with another motion "to dismiss the complaint founded substantially upon the same grounds as those stated in the motion at the close of the plaintiffs' testimony. The grounds urged upon the motion are, in substance, that there was no proof of a levy under the execution, that, if any was made, it was under an attachment, that the money was returned by defendant under orders and by consents relating to motions, that no liability for interest was shown, and that the sheriff could not legally make a second levy on moneys already held by him under attachment. There was another ground stated in reference to the rule of damages which obviously requires no notice, since it could only be urged, if anywhere, upon a direction or request to charge the jury, and not as a ground of dismissing the complaint. I do not deem it necessary to discuss the propositions urged by the defendant's counsel in detail, since, as I have already suggested, they are all met and effectually disposed of by the averments in the complaint and the admissions in the answer. *Page 31 While the answer stood upon the record, the defendant was not at liberty to raise an issue which he had emphatically closed. He had surrendered his right to call upon the plaintiffs for proof of a levy, a collection, or to question his liability to pay interest, for all these had been expressly admitted by the answer and the proof furnished out of the mouth of the defendant. It is no answer to say that the plaintiffs had voluntarily gone beyond these admissions and opened up an inquiry which the defendant was at liberty to pursue, and that this means escape from the effect of his own foreclosure. This may have been an unwise, as I think it was a very unnecessary procedure on the part of the plaintiffs, but it does not help the defendant's case, nor enable him to avoid the effect of his own admissions. Such admissions are conclusive upon the parties litigant, and upon the court, and no countervailing evidence can properly be received, or, if it is, either through inadvertence or by tacit consent, foisted into the case, it is entitled to no consideration. A mere denial in an answer will not allow a defendant to insist upon a fact brought out by the plaintiffs' evidence, although, if the matter had been set up by way of defense, it would have availed to defeat the action. (Brazil v. Isham, 2 Kern. 9.) For a still stronger reason, a party, who formally and explicitly admits, by his pleading, that which establishes the plaintiffs' right, will not be suffered to deny its existence, or to prove any state of facts inconsistent with that admission. No application was made to the court to be relieved from the effect of this admission, or to weaken or modify its full import; and, while it thus stood, in the language of WOODRUFF, J., in Robbins v. Codman (4 E.D. Smith, 325), "after such an admission, it was not necessary for the plaintiffs to prove it, nor would it be permitted to the defendant to deny it." It was urged upon the argument, that, conceding the money paid to the attorneys of the plaintiffs on the 29th of November, 1859, was collected on the execution, this suit could not be maintained, because the receipt operated as a full discharge (having been given with knowledge of the fact), of the cause of action. There are two answers to this: First, *Page 32 this point was nowhere taken or insisted upon on the trial, and second, the receipt does not, in terms, express that the money was received in satisfaction of the execution, but, as its language implies, on account of the execution, and there is not a particle of proof in the case that the attorneys had knowledge of any facts which would estop them or the plaintiffs from claiming the balance, which, from the very first, they had constantly insisted was due. The proof as to Cornell's deposits, although, as I think, quite unnecessary, was not irrelevant in the view with which the inquiry was made, since, if the question had arisen in another aspect, it might be important to know what disposition he had made of funds which he had clearly received on account in part of the plaintiffs, and whether they had been mixed with his own in such a way as to make the defendant liable for interest on another ground. No valid exceptions were taken to the charge of the judge. They are too general to be available. If the principles on which the judge calculated the amount the plaintiffs were entitled to recover were erroneous, the counsel should have stated in what respect the judge failed to give the right direction, and should have submitted his own rules, or stated what different result he claimed the evidence would lead to. Without this, the exception amounts to nothing, and was very properly disregarded. But I am inclined to think that an error, perhaps inadvertent, was committed by not allowing, in the computation, the sum of ninety dollars and interest, which had been paid by the sheriff, and this should be corrected, and, with this modification, the judgment should be affirmed, but without costs of this appeal to either party.