Reilly v. Cook

White, J. —The complaint in this action alleges that the plaintiff, as agent and factor of one Henry Stephens,, sold and delivered to the defendant, at his (the defchd ant’s) request, [258] goods to the value of $293.18, for cash; that the defendant agreed to pay that price for them; that said sum was due at the time of the commencement of this action; that since it became due, the defendant repeatedly promised to pay it to the plaintiff, and has not done so; and judgment, thereupon; is prayed, &c. The answer is generally divided into first, second, and third defences, but it all consists in this: it denies that the plaintiff sold the goods, and alleges that Henry Stephens owned them and sold them to the defendant upon a credit, which had not expired when this action was commenced; and it alleges that the plaintiff did not own the goods. This is the whole answer. It does not deny the allegations of the complaint, that the plaintiff sold the goods as the factor or agent of Stephens, nor the allegation that the defendant promised to pay the plaintiff for them. The allegations in the answer of ownership in Henry Stephens, and that he sold the goods to the defendant, are not relevant statements; nor are they in contradiction with any of the allegations of the complaint, which plainly avers the ownership of-Stephens. But if any purpose can have been intended by them (and it must be presumed that some purpose was intended by them), it can only be this: that they were designed to qualify the previous positive denial in the answer, that the plaintiff had sold the goods, and to indicate that the denial was intended only to raise in that manner, as a supposed defence, the point that the plaintiff did not, as owner, sell them, and had therefore no right to sue for their price. This, I think, upon a consideration of the whole context, is the fair construction to be given to this answer, and the point which it presents is obviously no defence. The uncontroverted sale of the goods by the plaintiff as the factor or agent of Stephens, and the promise of the defendant ■to pay the plaintiff, as stated in the complaint, are all sufficient to vest the plaintiff with a right to collect and sue for the price, as he -has done in this action. (Considerant a. Brisbane, 22 N. Y., 389.) The answer must therefore be stricken out as frivolous, with 'ten dollars costs; but as it contains an intimation that the sale •had been made upon a credit, which had not expired when the ■action was commenced, the defendant will have leave to serve [259] an amended answer, presenting that defence in a proper form, within ten days after the service of the order to be entered pursuant to this decision; the issue, however, in case of such amendment, to be of the same date that it now is, and the cause, if on the calendar, to retain its present place there.