Weide v. Porter

Cornell, J. This case comes before us upon exceptions to the ruling of the court upon the admissibility of certain testimony offered under the issues made by the pleadings. The real question presented is whether, upon an issue raised by a denial of the execution of a contract of sale and warranty, alleged to have been made between defendant and one Scheffer, it was competent to prove that such contract was made by the duly authorized agent of Scheffer; in other words, when the contract of the principal, which constitutes the foundation of the cause of action, is made through the intervention of an agent, is it necessary, in pleading it, to aver that fact and the authority of the agent? [431] Issuable facts alone are required to be stated in a pleading, and those according to their logical and legal effect. In this case the fact traversed by the answer, the proof of which would support the action, was the execution of the particular contract. If it was entered into by the party, its effect was the same, whether done by the principal per■sonally or by his authorized agent. In either case it was ■the contract of the principal. The complaint was sufficient to allow the evidence offered, tending to show that the alleged contract was, in fact, the contract of Scheffer, and the exclusion of such evidence was error, for which a new trial must be granted. The exclusion of the written assignment from Weide & Ross was also error. This was competent evidence, both for the purpose of corroborating the testimony of Weide, that he was acting as the agent of Scheffer, assignee of Weide & Ross, in making the trade, and also to show that the title to the property given in exchange for the horses was in Scheffer. That it also showed the existence of a trust for the benefit of creditors rendered it none the less competent, because, as against all but the beneficiaries of the trust, such title was absolute, and none but the cestuis que trust could raise any question growing out of an alleged violation of the obligations imposed by' the trust. Judgment reversed and new trial ordered.