Milbank v. Jones

By the Court.—Sedgwick, Ch., J. The complaint averred that on, &c., “ the defendant above named [136] received as trustee for the plaintiff, $5,000 in cash, which said sum he has ever since continued to hold in trust for this plaintiff; that by the terms and conditions of the said trust, under which said sum of money was received by said defendant, as aforesaid, it was understood and provided, and said trust was upon the express condition, that the same might be terminated by this plaintiff, on or after July 10, 1866, at his election ; that heretofore and on or about the day of February, 1886, this plaintiff caused due notice to be given to the defendant of his election to terminate said trust, and demanded payment to him of the aforesaid sum of $5,000. The answer denied each and every allegation of the complaint. The plaintiff, on the trial, gave in evidence a certain paper which began with a form of a resolution. Then followed, ‘‘New York, June 14, 1866. Received of R. W. Milbank $5,000 and also certificate for shares, &c., the said monejr and stock to be returned to said Milbank, in case the resolution above shall not be passed and take effect before the 10th of July next. It being understood and agreed that said Milbank shall have the right at his election in case said resolution shall pass and take effect before the said 10th of July, to purchase back the said stock, &c., “ signed Morgan Jones ; ” and at the end was “I assent to and join in the above understanding and agreement. R. W. Milbank.” The plaintiff examined a witness who gave testimony intended to show that the witness in behalf of the plaintiff, demanded of the defendant in February, 1886, the five thousand dollars. It was also proved that the resolution did not take effect before the 10th of July, 1866. It will be perceived that the plaintiff failed to make the case, averred in the complaint, in point of [137] fact. He put in evidence an agreement which was not a declaration of any trust and did not contain an express condition that the plaintiff might terminate the trust, The supposed obligation of the defendant to return the money did not rest upon the will of the plaintiff, but upon the fact -of the resolution taking effect before 10th July, 1866. The defendant did not point out this variance, but proceeded to meet the case as, or as plaintiff might claim it was made, outside of the pleadings. It might be claimed that after the demand the defendant held the money for the plaintiff. The defendant then offered to show that the object of the transsaction, as shown in plaintiff’s case, was illegal, and that it was made to secure from defendant lobbying services. The objection to this proof, and which was overruled by the court, was that such a defence had not been pleaded. I "do not think such an objection is good when the plaintiff will recover if he succeed upon a case not stated in the complaint, but upon one that first appears in the evidence. ■ Nor do I think it should be sustained when, whether competently or not, but in fact, the plaintiff places himself upon a trust, specifically so called, and resulting from antecedent occurrences, although not said so to result. The plaintiff chooses to affirm that a trust existed, meaning to give the facts that would prove the existence of the trust. The defendant should have the same kind of right to deny the existence of the trust, meaning to give in evidence the existence of facts which would show that no trust can in fact exist. I therefore think the judgment should be affirmed.