Provines v. Wilder

BOND, J. There is nothing'in the substance of the contract between Mrs. Brown and the two Ahlfeldts, at the time of its formation, which tends to prove an agreement on her part, for a valuable consideration, to forbear the collection of her note for a definite period of time. The two partners simply agreed that she might pay'for a sewing machine, if she was the highest and best bidder when it was sold in the progress of an auction of some of the firm assets, by crediting the amount of her purchase as so much money on a note which she held against one of the partners.- In such a transaction she did not get the article bought- at a reduced rate, for it is not pretended that she had any-advantage over any other bidder at the auction sale or that the auctioneer was directed to receive [166] her bid at a specified sum aud strike off the machine to her. This demonstrates that there was no foundation in fact for the special defense set up in the answer that she bought the machine at less than its market value. For even if it might have sold for more in the usual course of dealing, the fact that the partners had advertised its sewing machines for sale at •auction, open to all bidders, renders it absurd to say that they made a special reduction of price to plaintiff’s intestate. As there is nothing in the contract, therefore, which imported the slightest detriment to the seller of the machine, or the slightest advantage to plaintiff’s intestate over any other purchaser at the auction sale, we are at a loss to see any element of a valuable consideration to support the contract for delay, if there was any comfetent evidence in this record that such a contract was made. Indeed, the entire transaction seems to. have been solely for the benefit of the payor on the note, for his brother testified that he (witness) thought it better to let him (the payor) make a payment in this way than to take the money out of the firm. It is suggested that the authority given to plaintiff’s intestate to credit the note with the amount of her bid for the machine, furnished a sufficient consideration, because the thing bought was a partnership asset. The complete reply to this is, that the defendant made no such claim of any such consideration in the answer filed by him in this cause. The answer alleges that the sale was made by Ahlfeldt, the payor on the note, not by the firm; hence it is clear appellant can not rely on an unpleaded defense. That parties are concluded by their pleadings and restricted, in the maintenance of an affirmative •defense, to the- special allegations upon which it is based, is elementary law. The obtention by a creditor of the assets of a firm in payment of the private indebtedness of one of its members, if [167] legally acquired — by tbe consent of all of tbe members of the firm — might well .furnish a valuable consideration for a promise of further extension, but in order to be available, such fact would have to be pleaded by the party claiming to he released. The answer in this case not only wholly fails to plead any such consideration, but alleges in positive terms that the principal debtor on the note was the sole vendor of the machine. This ■averment of the answer is fully sustained by the testimony which shows that the two brothers, by an arrangement exclusively between themselves, agreed that the one who owed the note should account to the firm for the amount bid upon the machine — which was done — and thus have the right to demand of plaintiff’s intestate a credit for such sum on the note which she held against him. These views show that the special defense set up in this case was wholly unsustained' by the evidence; the judgment is, therefore, manifestly for the right party and is affirmed. All concur.