Wirges v. Baeuerle

Merwin, J.: In this case the plaintiff claimed that after the contract was executed by all the parties and entered upon, and left in the custody of the defendant, the defendant, without the knowledge or consent of plaintiff, fraudulently inserted material alterations going to the right of plaintiff to recover. Such alterations, of course, wore not a part of the original contract as made between the parties, and which the plaintiff had sued on. The only question in the case is, whether the plaintiff could give proof of such alterations without having alleged them in his complaint or reply. The complaint alleged a written contract deposited with defendant. The plaintiff is presumed to have known how the original was; he is not presumed to know what alterations the defendant had afterwards inserted. He had a right to suppose it would remain intact. He could not, therefore, be reasonably called upon to invcs tigate as to its condition, or speculate as to its additions or alterations before he brought suit on it. On coming to the trial, the contract being in writing, must itself be produced, or its loss or destruction shown. If lost or destroyed, then its contents could be proved by secondary evidence, although no allegation of loss or destruction was in the complaint. (Board, etc., v. White, 30 Barb., 72; Van Sant. Pl. by Moak, 369.) The contract is in the hands of defendant ; he produces it upon notice, and then plaintiff in effect claims it has been materially altered, in fact a forgery. If its loss or destruction could be proved without allegation in complaint, why not that which is tantamount to such destruction as far as plaintiff’s rights are concerned, especially when it is done, or claimed to have been done, while the paper is in the hands of tho defendant ? Ordinarily, if on the production of an instrument, it appears to have been altered, it is incumbent on the party offering it to explain (1 Greenl. Ev., § 561), but that hardly reaches the present case. It is here a question of pleading. No authorities are cited bearing upon the question. The most analogous principle that now occurs to me is the one applicable to defenses of forgery, which includes material alterations to the party’s injury. Such defenses jp-e admissible under a general denial. (Booth v. Powers, 56 N. Y 22, 29, 33; Boomer v. Koon, 6 Hun, 615; 1 Chit. Pl., [137] 519.) In other-words, the party seeking the benefit of the provisions of an instrument, is expected to be prepared to meet such claims without specific notice. Here defendant claimed the benefit of certain conditions precedent in a contract in bis hands. Under the above principle be must be prepared to meet -the charge of forgery in regard thereto, although not set up. Had the question arisen on the issue on defendants’ counter-claim, there is no doubt that under tbe general denial of tbe reply, the evidence would have been admissible. I tbink tbe same rule should apply when it became necessary for plaintiff to meet the same questions, in order to get rid of the apparent conditions precedent. The issue was, what was the contract? The defendant, by altering it, could not evade its obligations, or avoid the action. If plaintiff was bound to allege any alterations, be would have to allege as well those- made the day before the trial as those made the day after he entered on the performance. The evidence, I think, should have been admitted. It follows tbe judgment should be reversed and new trial granted, costs to abide event. Present — Talcott, P. J., Smith and Merwin, JJ. Judgment reversed and new trial granted, costs to abide event.