
    The Pfaudler Process Fermentation Company, App'lt, v. McPherson, Smigh and ano., Respt’s.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed January 11, 1889.)
    
    1. Pleadings—Amendment—Suepeise—Code Civil Peo., §§ 539 and 733.
    When the plaintiff’s alleged cause of action is not put in issue by the answer, no greater surprise could occur to him after the trial had commenced than to require him by an amendment of the answer to make proof of his cause of action.
    S. Same—Denial.
    It is a fundamental rule of pleading that if a party wishes to traverse a fact alleged in the pleadings of which he is called upon to answer, he must deny the same in plain and unambiguous terms.
    
      3. Same—Ambiguity of—Remedy—Code Civ. Pbo., § 546.
    Where the allegations contained in a pleading are so indefinite or uncertain that the precise meaning thereof is not apparent, the party affected may require, by a motion, that the pleading he made definite and certain.
    4. Same—Amebdmeht of.
    _ Where there is a manifest intention by the defendant to deny an allegation of the complaint, no new defense is interposed by allowing the answer to he amended to conform thereto.
    Appeal from a judgment entered upon the report of a referee dismissing the plaintiff’s complaint, with costs. The plaintiff, a corporation, is the owner of certain letters patent for an improvement in the process of the manufacture of beer and other fermented liquors. The defendants, are brewers residing in the city of New York. The action is upon a contract alleged to have been made by the defendant for the use of the improvement in their business, and a promise to pay a specific sum per barrel for such use. The averment as to the contract and its terms is in these ■ words : “That on or about the 4th day of June, 1883, the said defendants entered into an agreement with the said plaintiff, whereby it was agreed that said plaintiff should cause said apparatus, described in said letters patent, to be placed in the brewery of said defendants for the use of said defendants ; that said defendants agreed to pay for the use of said apparatus the sum of three cents as a royalty for each barrel of beer manufactured by them.”'
    This averment is followed by the statement that the apparatus was placed in the defendant’s brewery on or about the 27th day of June, 1883, and that the defendants used the same until the 24th day of July, 1884, and during that, period manufactured 14,396 barrels of beer, and that the defendants are indebted to it for such use, in the sum of $431.89, for which amount judgment was demanded. The defendants denied that the plaintiffs were the owners of the letters patent set forth in the complaint, and their third answer relates to the agreement, and is as follows: “ These defendants deny that on or about the 4th day of June, 1883, or any other time, these defendants entered into an agreement with the said plaintiff, whereby it was agreed that said plaintiff should cause said apparatus described in said letters patent to be placed in the brewery of said defendants for the use of said defendants, and that they agreed to pay for the use of said apparatus the sum of three cents as a royalty for each barrel of beer manufactured by them, and * these defendants deny that on or about the 26th day of June, 1883, that said plaintiff pursuant to said agreement, caused said apparatus to be placed in defendant’s brewery, and they deny that these defendants did, thereafter, until the 26th day of July, 1884, make use of said apparatus in the manufacture of beer, and they deny that during the time in which said apparatus was used by defendants, said defendants manufactured fourteen thousand three hundred and ninety-six and three-twelfths barrels of beer, and they deny that there is now due to plaintiff, as royalty, the sum of $431 80-100, or any other sum whatever.” In their fourth answer they set up the arrangement as they claim it to have been, and state that the plaintiffs desired to place the improved apparatus for the manufacture of beer in their brewery for the purpose of allowing the defendants to try and test its utility, and that it was understood and agreed that no charge should be made for such use, and that they permitted the plaintiff to place the same in their brewery upon those conditions, and that they did use it for a time, and being satisfied that the apparatus did not possess any merits, it was removed by the plaintiff at their request.
    On the trial the plaintiff gave evidence tending to prove the agreement as set out in the complaint. After the defendants took the case, they offered evidence in support of their contention, as to the nature and effect of the agreement, which was objected to by the plaintiff upon the ground that the answer had not put in issue the contract as set out in the complaint, and thereupon the defendants moved for leave to amend their answer so as to put in issue, by denial, the allegation in plaintiff’s complaint in regard to the alleged agreement between the plaintiff and defendants, and to meet the proofs offered on the part of plaintiff, which motion was then granted, and the plaintiff excepted.
    <7. & Q. Van Voorhis, for appl’t; Albert 77. Harris, for resp’ts.
   Barker, P. J.

The appellant insists that the referee had no power to allow the defendants to amend their answer on the trial in the respect granted, and that the exception to such allowance was well taken.

The argument offered in support of the plaintiff’s position is, that the original answer upon ■which he went to trial before the referee did not in legal effect deny the contract as set out in the complaint, and that the making of the same was a fact admitted.

If the answer is susceptible of such construction, then by the amendment a new issue was introduced, which the referee had no power to allow. A denial of the cause of action sued upon by amendment, on the trial, does substantially change the defense. When the plaintiff’s alleged cause of action is not put in issue by the answer, no greater surprise could occur to him after the trial had commenced than to require him by an amendment of the answer to make proof of his cause of action. Code Civ. Pro., §§ 539, 723; Price v. Brown, 98 N. Y., 388.

We are inclined to the opinion that the original answer did, by fair construction of its language, put in issue the. averment of the complaint, that the defendants made andt entered into the contract as stated therein. It is a fundamental rule of pleading, which prevails now, as it did before the adoption of the Code, that if a party wishes to traverse a fact alleged, in the pleading of which he is called upon to answer, he must.deny the same in plain and unambiguous terms. If, by the form of the denial used, it is left, in doubt whether the party intends to dispute the fact, charged or only the circumstances attending the fact against him, as, for instance, the time and place of making: a contract set up in the pleadings, and not the making of a. contract of the form and substance of the one alleged, it is a bad or defective- answer, for the reason that, in legal phrase, it is pregnant with the admission that the fact, alleged is in part true.

In the case before us, the complaint sets forth a separate-paragraph, the terms of the alleged agreement.

The defendants’ answer, in terms, denies that they entered into an agreement with the plaintiff, whereby it was agreed that the said plaintiff should cause said apparatus described in said letters patent, to be placed in the brewery of said defendants, for the use of said defendants, and that they agreed to pay for the use of said apparatus, the .sum of three cents as royalty for each barrel of beer manufactured by them, which is in effect a denial of the terms of the contract, as set forth in the complaint: If the words of the complaint, setting forth the alleged contract, had been copied in the answer, and even denied that the defendants made such an agreement, it would have constituted a complete denial of the plaintiff’s alleged cause of action, and we think that such was the effect of the form of the answer adopted. The denial is as broad as the averment. The answer is in its form and effect, similar to the old pleading of general issue, where in an action of debt, the plea was, that the defendant does not owe the sum of money demanded, or any part thereof, in manner and form, as the said plaintiff hath, above complained against him.

Ambiguity in pleading always constituted a fault, and when that is the only objection' to be urged against the pleading, then the party affected thereby, and who is in doubt as to its meaning, may require by a motion, that the pleading be made more certain and definite, as provided by the Code, and the rules and practice of the court. Section 546. It is provided, where one or more denials or allegations contained in the pleading, are so indefinite or uncertain, that the precise meaning or application thereof is not apparent, the court may require the pleading to be definite and certain by amendment. That the answer does deny that the defendants did made a contract containing all the terms and provisions as set out in the complaint, is admitted by the learned counsel for the appellant, for his argument, is, that the answer constitutes a negative pregnant, which is an admission by the pleader that the averment to which the answer relate, is in part true, or is not all false. .

As it is manifest that the defendants intended to deny some of the averments relative to the making of the contract, we think the plaintiff’s proper remedy was by motion to have the answer made more definite and certain, and as that mode of relief was not resorted to, we think the referee had the power to allow the amendment under the provisions of sections 539 and 723. As there was a manifest intention on the part of the defendant to deny the making of the agreement, as set forth in the complaint, we are of the opinion that by allowing the answer to be amended, no new defense was interposed thereby.

After a perusal of the evidence, we see no reason for interfering with the referee’s conclusions as to what were the? terms of -the agreement under which the plaintiff placed, its apparatus in the defendant’s brewery for their use. Evidence was given on both sides of the dispute, and none of the witnesses who testified relative to the terms of the-contract were disinterested. The referee was better qualified- than we are to decide which was most entitled to credit.

Judgment affirmed.

All concur.  