
    Frank Rawlings v. Young Men’s Christian Association of Lincoln.
    Filed April 21, 1896.
    No. 6506.
    1. Contracts: Pleading: Burden of Proof. When suit is brought upon a contract, a general denial puts the making of the contract in issue, and the burden devolves upon the plaintiff of establishing it substantially as alleged.
    2. Subscriptions: Pleading: Evidence: Principal and Agent: Instructions. Suit was brought on a subscription contract, alleging an absolute subscription. The answer contained a general denial. The evidence tended to show that the defendant had authorized the plaintiff’s solicitor to enter his name for a certain amount subject to certain conditions; and that the solicitor had subscribed defendant’s name without embodying such conditions in the contract. Held, (a) That the issue presented was not whether there had been a breach of the conditions which would constitute a defense, but was whether the defendant had authorized the contract which the solicitor had undertaken to make for him; (6) that the defendant was not bound by the acts of plaintiff’s solicitor beyond the actual authority conferred upon him; (c) that the defendant was entitled to have this theory of the case submitted to the jury.
    3. Evidence: Lost Books: Subscription. The book in which the subscription was entered was proved to have been lost. Held, That the plaintiff might prove its contents by parol evidence, although there were in existence similar books also used for subscription purposes, substantially like the one in question, and not offered in evidence.
    Error from the district court of Lancaster county. Tried below before Hall, J.
    
      Davis & Hibner, for plaintiff in error.
    
      Riclcetts é Wilson, contra.
    
   Irvine, C.

The Young Men’s Christian Association of Lincoln. brought this suit against Rawlings, alleging in its petition that it was a corporation, and that in the year 1888, desiring to erect a building, it solicited subscriptions for that purpose; that Rawlings subscribed to tbe erection of tbe said building tbe sum of $500, to be paid on demand; and that tbe association, on the faith of that and other like subscriptions, proceeded to erect a building for tbe use of tbe association and contracted extensive liabilities which remain unpaid; that thereby Rawlings became indebted to tbe association in said sum of $500. Rawlings answered admitting that tbe plaintiff was a corporation and that in 1888, desiring to erect a building, it solicited subscriptions for that purpose. Further answering, Rawlings denied that be subscribed $500, or any sum whatever, for said purpose; denied that be was indebted to tbe association in tbe sum of $500, or in any sum whatever; and denied every allegation of tbe petition not specifically admitted; Tbe trial resulted in a verdict and judgment for tbe association for tbe amount claimed, with interest. Rawlings brings tbe case here by petition in error.

Tbe evidence discloses that one Ensign bad been employed by tbe association to solicit subscriptions; that for this purpose there was placed in bis bands a book containing a certain preliminary statement or caption in tbe nature of a subscription contract. This was followed by blank spaces for signatures and tbe entry of tbe amounts subscribed. There were several of these books, which were turned in by tbe solicitors to tbe officers of tbe association. In one of the books, turned in by Ensign, appeared tbe name of Rawlings, and opposite it, in figures, “$500.” This book was not forthcoming on tbe trial, and after quite satisfactory proof that diligent search for it bad proved unavailing, tbe plaintiff was permitted to prove its contents by parol evidence. None of tbe witnesses undertook to give tbe language of tbe so-called “caption.” None of the other books was produced or offered in evidence. There was evidence tending to show that some of these captions were printed, some written, and some type-written; that they were not in all respects alike, although substantially the same in terms. The parol evidence admitted tended to show that following Rawlings’ name appeared the words, “to be used on building.” Mr. Ensign testified that when he called on Rawlings, Rawlings authorized him to enter his name for $500 on this condition, and on the further condition that the building should cost $50,000. Mr. Rawlings’ testimony was to the effect that he had positively refused to himself subscribe or to permit his name to be subscribed for any sum whatever; but that he had said that if he gave anything it would be on condition that the building should be commenced the following spring and completed during the year. Witnesses on behalf of the association testified to conversations with Rawlings after the time of his alleged subscription. One of these witnesses says that, when confronted with the book, Rawlings said that there was a condition to the subscription, that the association was to begin the building within a given time. Another witness said that Rawlings’ statement to him was that the subscription was to be applied upon the building and not on the lots, and that the building was to be completed at once. The remaining witness for the plaintiff, testifying as to tjbis last conversation, said that Rawlings said that the building was to be completed within a year. Reviewing this testimony, it will be observed that it is conceded that Rawlings did not himself subscribe; that according to his own testimony he never subscribed, but merely said that if he did it would be upon certain conditions. According to the other witnesses, he had authorized Ensign to subscribe for him, but according to each of them there was a condition to be attached to his subscription, although the witnesses differ as to what this condition was. In this state of the evidence, the court instructed the jury as follows:

“Plaintiff contends in its evidence that defendant authorized the witness Ensign to sign his name to its subscription list for $500, in the year 1888, to be used in the erection of its building. Whether or not such authority was given is a question for you to determine from tbe evidence.

“If yon find from tbe evidence tbat defendant, in tbe year 1888, authorized tbe witness Ensign to sign defendant’s name to plaintiff’s subscription list for $500, to be used by plaintiff in tbe erection of its building, then you are instructed tbat defendant’s name, if so signed by bis direction and authority, binds defendant, and is as legal as though signed by himself personally.”

Tbe following instructions requested by defendant were refused:

“If you find from tbe evidence tbat tbe defendant refused to sign tbe subscription contract described in tbe petition and testimony of plaintiff, but instead thereof authorized bis name to be attached to another and different contract, then your verdict should be for tbe defendant.

“You are instructed tbat if you find tbat tbe defendant authorized tbe witness Ensign to sign bis name to a subscription with certain conditions annexed, and tbe witness Ensign signed bis name to such subscription with- . out those conditions annexed, such act of signing would not be tbe act of tbe defendant and be would not be bound thereby.

“If you find from tbe evidence tbat tbe defendant authorized bis name to be signed to a subscription for $500 upon condition tbat plaintiff would agree to complete its building within one year, then such condition was necessary and without it tbe defendant could not be bound, and if you find from tbe evidence tbat such condition was required by him at tbe time, your verdict should be for defendant.”

Tbe propriety of the giving and refusal of these instructions is presented for review.

Tbe plaintiff contends tbat under tbe pleadings there was no question presented as to a condition attached to tbe subscription, or a breach thereof; tbat, therefore, tbe court properly submitted tbe case to tbe jury on tbe sole question of the authority given by Rawlings generally to-subscribe his name; and therefore properly refused instructions involving a consideration of the conditions attached to the subscription. We quite agree with the plaintiff that the special denial of a subscription put in issue only the question as to whether there had been, any subscription, of whatever character. But the answer contained a general denial, and it therefore devolved upon the plaintiff to prove the contract as he alleged it. (McEvoy v. Swayze, 34 Neb., 315.) In that case the plaintiff sued on a contract which he set forth. The defendant by answer averred a different contract and denied the contract pleaded by plaintiff by a general denial of the petition. The court held that the burden devolved upon the plaintiff of establishing the contract he alleged, saying: “The answer, therefore, put in issue the making of the contract and the breach thereof as set up in the petition. The affirmative matter averred in the answer is nothing more than an argumentative denial. Such allegations were entirely unnecessary, as the facts could have been proven under the general denial.” If the defendant in this case had pleaded specially, the answer would necessarily have been reducible to this form: “The defendant says that he did make a certain contract of subscription, as follows: etc. But denies that he made the contract alleged in the petition.” To any one familiar with common law pleading, it is at once apparent that this would have been analogous to the special traverse of the common law, where the inducement was not itself traversable and the absque hoc was the gist of the plea. (Tyler, Stephen on Pleading, 199.) It would not be a plea in confession and avoidance, but a direct traverse putting in issue the declaration, with the affirmative matter merely pleaded as an inducement, but not itself .tendering an issue. If the defendant were here relying upon a conditional subscription and a breach thereof, it might be questionable, under the Code, whether the common law rule would prevail, and whether it would not be necessary for tlie defendant to plead tbe condition and tbe breach; and in sncb a case tbe plaintiff’s further argument might be pertinent, that tbe conditions here proved were conditions subsequent and not precedent; and that, therefore, tbe subscription was collectible without proof of a prior compliance with tbe condition. But tbe question presented by tbe instructions is a different one. Rawlings did not himself subscribe. Tbe utmost that tbe plaintiff’s evidence discloses is a subscription for him by an agent. This agent was also tbe agent of tbe association, so that tbe association was charged with tbe agent’s knowledge of any limitations placed upon bis authority by tbe defendant. Therefore there is no question in tbe case of an implied authority, or authority by estoppel. If it is true that Rawlings did authorize Ensign to subscribe $500 for him, but required that certain conditions should be attached to this subscription, then tbe subscription by Ensign of Rawlings’ name to a contract not embodying those conditions was without authority. It was not the act of Rawlings, and he is not bound thereby. The instructions given by the court may be in themselves correct; but under the evidence they should have been accompanied by specific instructions bearing on this question of the authority given to Ensign; and while perhaps those requested by the defendant were not so specific as might be desired, the first and second at least were free from legal objections, and the defendant was entitled to have them given.

The defendant contends that the court erred in admitting parol evidence of the contents of the subscription book, in view of the fact that the evidence disclosed that other books of like character were in existence. It is insisted that these other books were better evidence than parol testimony of the contents of the particular book, as to the nature of the contract, at least so far as the caption is concerned. This question should be disposed of, as there must be a new trial of the case. We do not think that in this respect the court erred. In the first place, it was not shown that the other boohs in existence were copies of that particularly in question. The proof was merely that they were in substance alike, and that they differed in details. In the second place, we think it is the general rule that there are no degrees of secondary evidence. When the primary is not obtainable, a party may resort to any evidence otherwise competent; and his choice of one class of secondary evidence instead of another goes to the weight of the evidence and not to its admissibility. (Goodrich v. Weston, 102 Mass., 362; Greenleaf, Evidence [14th ed.], sec. 84, note.)

Reversed and remanded.  