New York News Publishing Co. v. National Steamship Co.

*41 O’Brien, J. The complaint in this action alleged that the defendant was indebted to the plaintiff in the sum of 8591.18, a balance due from the defendant for work, labor and services in advertising for and at the special instance and request of the defendant. The defendant, by its answer, denied this allegation. The plaintiff, on the trial, gave proof tending to establish an agreement between the parties to the effect that the plaintiff should do certain advertising for the defendant and be paid therefor in the tickets of defendant; that plaintiff did perform the work in advertising, and had received thereon a certain quantity of tickets, but leaving still due the amount stated in the ■complaint; that the plaintiff had demanded the balance of the bill from the defendant in tickets, but the demand was refused. The plaintiff claimed that these facts established a money indebtedness from the defendant. The rule in this state seems to be that where a party agrees to pay a specific sum, or, as in this case, the value of the services in some specific articles of property, and upon demand refuses or fails to deliver the property, his obligation is thereby converted into one for the payment of money. (1 Sedg. on Dam. [8th ed.] § 280; Gleason v. Pinney, 5 Cow. 152; Smith v. Smith, 2 Johns. 235; Brooks v. Hubbard, 3 Conn. 58.) There was some conflict in the evidence as to the facts, but the court submitted all the questions to the jury, and the verdict must be taken as establishing in plaintiff’s favor the performance of the work .at the price alleged, the agreement to pay in tickets and the refusal to do so, and the consequent obligation to pay in money. The only point urged by the defendant in support of the .appeal which it is necessary to consider is the contention that the plaintiff set out in the complaint one cause of action and recovered upon another and different cause of action. The plaintiff has stated the facts constituting the cause of action, ■not as they actually existed, but according to their legal effect. In most cases either mode of pleading, at the option of the party, is correct. (Bennett v. Judson, 21 N. Y. 238; Far *42 ron v. Sherwood, 17 N. Y. 227; Barney v. Worthington, 37 N. Y. 116.) In pleading facts according to their legal effect it may sometimes happen that the opposite party is left in the dark as to the proof which he may be required to meet at the trial, but, ordinarily, this difficulty can be avoided by motion, when, necessary, to make the pleading more definite and certain. In this case, if the defendant had any doubt as to the identity of the claim that it was required to defend, a simple demand for a bill of particulars or a motion would make everything clear. The material part of the complaint was the allegation of a money indebtedness by, defendant to plaintiff and that allegation was supported by proof of the agreement to perform the work, for payment in tickets, the performance of the work, and the refusal to deliver the tickets. In other words, the fact pleaded according to its legal effect was proved by proof of the facts as they existed. So there was no variance that the defendant can complain of. The-other questions discussed relate to the proof given. It is not very clear, but its sufficiency and interpretation was for the jury The judgment must, therefore, be affirmed. All concur. Judgment affirmed.