
    National Cash Register Company, Respondent, v. Joseph Besch, Appellant.
    
      Pleading—an answer alleging that a machine, used by the defendant pending delivery of a similar one ordered, did not fulfill representations is good.
    
    An answer, interposed in an action to recover the purchase price of “one of your No. 8 Detail Adding Registers,” ordered by the defendant from the plaintiff, which alleges that, pending the delivery of the register, the defendant, while using a similar register which had been loaned to him by the plaintiff, discovered that representations made by the plaintiff’s agent, in order to induce him to order the register, were false and fraudulent, sets up a good defense.
    Appeal by the defendant, Joseph Besch, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on'the 7th day of October, 1899, upon the decision of the court, rendered after a trial at the Albany Special Term, sustaining the plaintiff’s demurrer to that portion of the defendant’s answer which set's up new matter as a separate defense, interposed upon the ground that it is insufficient in law upon its face, and also from an order entered in said clerk’s office on the 7th day of October, 1899, upon which said judgment, was based.
    
      Newton B.. Van Derzee, for the ajipellant.
    
      Eugene D. Flanigan, for the respondent.
   Merwin, J.:

According to the allegations of the complaint, the defendant, on the 26th of April, 1899, at Albany, N. Y., gave to the plaintiff, a foreign corporation engaged at Dayton, Ohio,' in the business of manufacturing and vending machines known as “ The National Cash Register,” and having an office at Albany, N. Y., a written order to ship to him at his place of business in Albany, as soon as possible, “ one of your- No. 8 Detail Adding Registers,” for which he agreed to pay, in the manner set forth in the order, the sum, of $125. It is alleged in the complaint that the plaintiff delivered to defendant the machine called for by the order, but that the defendant has not paid for the same, and that the whole of the price is due according to the terms of the order. ■ ■

In the answer, after some admissions and a general denial of all the allegations in • the complaint not admitted, it is alleged, in the defense demurred to, that, at the time the defendant agreed to purchase the machine the agent of the plaintiff made certain representations as to the character of the machine and as to what it would accomplish. These representations are. set out and were clearly material. It is alleged that they were the basis of the agreement, were relied on by the defendant and believed by him to be true; that at the time of making the purchase the defendant had not seen the machine and knew nothing about its qualities and construction, and'relied wholly on the representations in making the purchase; that thereafter the defendant, for his use while the register which he agreed to purchase could be delivered, received the loan of a cash register from plaintiff like the one which he had agreed to purchase ; that while using the same, defendant discovered that the representations so made by plaintiff were false to plaintiff’s knowledge and were made with intent to deceive the defendant; that upon such discovery the defendant rescinded the contract and notified the plaintiff thereof on or about May 11, 1899, and returned the loaned machine; that the plaintiff persisted in its efforts to compel the defendant to accept the register, and that the defendant, on the 22d of May, 1899, notified the plaintiff that he had countermanded the order; that the machine has never been in fact delivered by the plaintiff to the defendant.

The main criticism upon the answer seems to be that the defend^ ant, having alleged that the machine contracted for has never been in fact delivered by plaintiff to defendant, is not in a position to know or to say that the machine ordered and which plaintiff claims to have delivered will not or does not satisfy the representations made at the time of the contract of purchase. The allegation of non-delivery in the answer is not, strictly speaking, new matter. It is evident from the allegations in the answer that the plaintiff attempted to deliver a machine. If so, the defendant would have had an opportunity to examine it. The allegation that no actual delivery was made may be construed as meaning that a delivery was not accepted by defendant.

It will be observed that the order of the defendant was not for a machine generally, or for one to be manufactured for a particular purpose, but was specifically for “ one of your No. 8 Detail Adding Registers.” Pending its delivery, one like it was loaned by plaintiff to the defendant for his,use in the meantime.

The order was for one of a specified class or description. Any one of that class would answer the order. Presumptively each one of that class was like the others. If one of that class was loaned to the defendant, he would naturally have the means of determining the character of the one that was to be delivered to him upon his order.- If so, • the fact that the machine that the defendant ordered was never in fact delivered to him would not stand in the way of his proving the alleged fraud. The .fact that the .defendant did not try the machine that the .plaintiff offered to deliver may affect the manner of defendant’s proof, but will not preclude him from proving if he can that the one tendered was like the one. he used and could not answer the representations.made.

In determining the sufficiency of the pleading it must be assumed that the facts stated therein, as well as such as may by reasonable and fair intendment be implied from the allegations made, are true. (Milliken v. Western Union Tel. Co., 110 N. Y. 403.) Within this rule the answer demurred to is, I think, sufficient to enable the defendant to prove, if he can, all the elements necessary to be proved in order to show ,such fraudulent representations as would allow the defendant to rescind the contract. The demurrer, therefore, should not have been sustained.

All concurred.

Interlocutory judgment reversed, with costs, and demurrer overruled, with costs.  