
    WILLIAM O. ROOME et al., Plaintiffs and Respondents, v. GRANVILLE NICHOLSON et al., Defendants and Appellants.
    Where, in an action to recover for a cargo of coal sold and delivered, the answer alleged that the purchase was made through a broker, who represented that he was selling it for a person other than the plaintiff—Meld, upon affidavits, that the plaintiff was the owner, and the broker his agent; that the answer should be stricken out as sham. The unauthorized representations of the plaintiff’s agent will not defeat a recovery, even though such representations are believed.
    The test of a sham answer is that it is untrue. It is not necessary that the defendant knew it was not true.
    A defendant need not be adjudged guilty of perjury, to have his answer declared to be false. He may have wrong information, or mistaken views of the law.
    If the defense is shown to be in fact false, it should be stricken out.
    Before Monell, McCunn, and Fithian, JJ.
    
      [Decided October 30, 1869.]
    This is an appeal from an-order of Mr. Justice Freedman, striking out defendants’ answer as sham.
    
    
      Mr. T. W. Wardell for appellants.
    The court will not strike out an answer as sham, unless plaintiffs make a clear case, or where defendants show that their answer is put in in good faith, and support it by affidavit affirming its truth, and showing specially the facts on which they" rely to sustain it (People v. McComber, 18 N. Y., 325; Bailey v. Lane, 13 Abb. Pr. R., 354; Lockwood v. Salhager, 18 Abb. Pr. R.) ; and that slight circumstances indicating good faith will be sufficient to prevent an answer from being stricken out as sham, and the power will be cautiously exercised (Munn v. Barnum, 1 Abb. Pr. R., 281; People v. McComber, 18 N. Y., 325 ; Webb v. Van Zandt, 16 Abb. Pr. R., 190; Manf. Bank v. Hitchcock, 14 How. P. R., 406).
    
      
      Mr. W. W. Goodrich for respondents.
    The order to strike out the answer was properly made. The answer constitutes no defence. Even if Packer & Co. owned the coal, the answer set up no claim or cause of action against them to offset the amount due for the coal.
    The plaintiffs support their ownership of the coal by their own affidavit, and by the affidavits of Packer & Bass.
    No action could be maintained by Packer against the defendants, because they would in such an action be estopped by the facts and by their affidavits on this motion.
    The only affidavit used to oppose the motion and to contradict the facts set up in the affidavits of Boome, Packer, and Bass is that of Nicholson, one of the defendants; but, even if that affidavit were true, the facts could not he proven under the defendants’ answer.
   By the Court:

Monell, J.

The affidavits used upon the motion at Special Term establish clearly two facts: First. That the coal in question was the property of the plaintiffs, and was sold by them to the defendants; and, second, that Bass, who made the sale, was the agent of the plaintiffs to make the sale. These facts are not controverted. The most that the defendants claim is that Bass represented to them that the coal belonged to, and he was selling it for, Packer & Son, and that they supposed they purchased it from such latter firm.

The unauthorized representation of the plaintiffs’ agent will not defeat the .plaintiffs’ right to recover. The representation made in this case was not only not within the scope of the agent’s authority, but was in direct hostility to the purpose for which he was appointed. And, however much the defendants may have been misled, they cannot avail themselves of the false representations of the agent to defeat the recovery of the principal (N. Y. Life Ins. Co. v. Beebe, 7 N. Y. R., 364).

No doubt the defendants believed they were making the purchase of Packer & Son.; but when they made their answer they had been informed that the purchase was in fact made of the plaintiffs; and they must, therefore, have known that their answer was untrue, unless they designed or hoped to defeat the action by means of the representations of Bass. As such representations cannot affect the plaintiffs’ rights, and there is no possible doubt, upon the proofs now before the court, that the plaintiffs must succeed, it was correct to strike out the answer as sham. The test of a sham answer is that it is untrue in fact, and it is immaterial whether -the party making the answer knew of its untruth. If the court can see that it is false, it should he stricken out, notwithstanding the defendant may have believed it to be true.

It is not necessary to adjudge a defendant guilty of perjury, or even to impute to him such a crime, in holding his answer to be false. He may have made his allegations in perfectly good faith, believing them to be wholly true, and yet the court, satisfied by proof that such allegations are untrue, must strike the answer from the record.

That is this case; The answer was probably made in the belief that the representatives of Bass would enable the defendants to avail themselves of their set-off against Packer & Son. But they were mistaken; and it was correct, therefore, upon the undisputed proof that the purchase was in fact made of the plaintiffs, to hold the answer to be sham, so as to authorize it to be stricken out.

The order appealed from should be affirmed, with costs.  