
    Alexander T. Porter, Respondent, v. Magnetic Separator Company, Appellant.
    (No. 1.)
    First Department,
    November 5, 1906.
    Money had and received — action to recover loan to be repaid when bor-. ' rower was able — Statute of Limitations —burden to show ability to pay — financial reports of the corporation not conclusive — evidence.
    An instrument in the following form :
    
      
    
    is not a promissory note but a mere receipt for money loaned.
    When a plaintiff suing to recover said loan, fourteen years after it was made,
    ' proves that the agreement was* that the company should repay the loan “ when it was able to do so,” the burden is on the defendant alleging that the Statute of Limitations had run to show that the company was in financial condition to pay the loan six years before action was brought.
    When, for that purpose, the defendant introduces the annual reports of the company, showing a balance of §215,000, it is competent for the plaintiff to show that that value consisted of patent rights and various contracts not available as assets for the purpose of paying debts; the reports themselves are not conclusive.
    When the defendant counterclaims for money it was obliged to' pay to settle an unpaid balance due on a machine sold to it by the plaintiff and others, and it is shown that one of the other vendors was repaid a loan similar to that made by the plaintiff, and without any deduction on account of the sale of said machine, it is for the jury to say whether there was any understanding that the machinery was sold free-of incumbrance.
    Laughlen and Houghton, JJ., dissented.
    Appeal by the defendant, the Magnetic Separator Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Bew York on the 29th day of March, 1906, upon the verdict of a jury; also from an order entered in said clerk’s office on the 28th day of March, 1906, denying the defendant’s motion for a new trial made upon the minutes, and also from an order entered on the 18th day of April, 1906, granting the plaintiff an extra allowance.
    
      H. D. Bailey, for the appellant.
    
      F. E. Holloway, for the. respondent.
   Patterson, J.:

In. an action for money loaned by one Clinton M. Ball, the plain-, tiff’s assignor, to the defendant, the plaintiff recovered a judgment, and from that judgment and from an order denying a motion to set aside a verdict and for a new trial, the defendant appeals. ■

It is alleged in the complaint that the loan was made on the 10th day of January, 1890,' and it is conceded in the record that the action was not brought until the 5'th day' of January, 1904. It is further alleged in the complaint that the loan was made upon an agreement that the money was to be used as working capital by the defendant, which is a corporation organized .under the laws of the State of Hew York, and was to be repaid, either upon demand or as soon before demand as the finances -6f the defendant would permit of the payment of the same. The defendant in answering, set up the six years’ Statute of Limitations, and then, as a second separate defense, it averred that the amount mentioned in' the complaint was not a loan, to the defendant, but was a payment made by the plaintiff’s assignor in fulfillment of a contract which he had made with one Ide, by which Ide was to purchase stock from Ball and $1,000 of the purchase money paid therefor was to be given by Ball to the defendant. ' For a further partial defense and as a counterclaim, the defendant also set up that.on. or about Januáry 10, 1890, the defendant purchased from Ball, the plaintiff, and a third party, certain articles of personal property, including a machine made by W. H. Tolhurst & Son, of Troy, H. Y.; that by the contract of purchase, the plaintiff, Ball, and the other party undertook and agreed to deliver the' property so purchased without further cost to the defendant; that that" agreement was not performed; that, at the time ,of the purchase, Ball and the plaintiff knew that there was owing, to Tolhurst $849 on account of the construction of the machine ; that the defendant was compelled to pay that sum in order to get possession of it, and the counterclaim is for that amount thus paid. It was also alleged in the answer that, within six years after that payment, Ball removed from the State of Hew York and has been a non-resident ever since and those facts were proven at the trial.

On the issue concerning the nature of the transaction there was evidence to support the allegations of the complaint. At the time the money was paid in to the defendant its treasurer gave a receipt therefor in the following words :

That receipt has been referred to as a note and the defendant claims that the action is based upon it. That is not so. The paper is only an acknowledgment of the receipt of the money and a statement of the purpose to which it was to be applied. The testimony of the plaintiff and of Ball is to the effect that at a meeting of the directors of the defendant held at about the time the money was advanced it was agreed that the three parties should each loan $1,000 to the company, and there is evidence to the effect that it was part of the agreement “ that the money would be repaid as soon as the company was in a condition of financial ability to repay it.” The evidence established that there was a loan of money to be repaid when the company was able to do so.

Such being the nature of the transaction, and the defendant having set up the Statute of Limitations as an affirmative defense, it was incumbent, upon it to show that the statutory bar applied and that could only be done by proving, at least, that it had the financial ability to pay more than .six years before the commencement of the action. By the terms of the contract the loan was continued indefinitely until the company had sufficient ability to pay and the defend-. ant was under the obligation to show everything necessary to set the statute running. The defendant sought to make such proof by introducing in evidence annual reports made by the directors of the defendant, including Ball, for the years 1893 and 1894, in which they reported that the company was possessed of assets of the value of $230,000, and that it had $15,000 debts: The plaintiff showed the Veal condition of the company at the time those reports were made and the items of which such assets consisted, namely, patent rights which had been assigned to the company for a consideration of $200,000 and various contracts, and facts from which the inference is deducible that such assets were not available

for the purpose of paying debts. The introduction, of that prbof was objected to, but was admissible under the authority of Tebo v. Robinson (100 N. Y. 27), which was an action upon a-promise to pay a debt when the debtor was able. The Statute of Limitations was pleaded and'the court said, among other things: “It may be assumed that the case made by the defendant prima faoie established the fact of his ability to pay the plaintiff’s debt prior to November, 1875,” when the action was commenced. The defendant in that case had kept a bank account which fluctuated and he also was the owner of a seat on the Stock. Exchange which was worth $5,000, but the court held that the bank account and the ownership, of the seat in the Stock Exchange was not inconsistent with an inability to pay the debt prior to November, 1875, and that a question of fact for the jury was presented. Hence the reports in evidence in the case at bar were not conclusive.

There is no other affirmative evidence on the part of the defendant to show that it was in a condition to pay this debt until. 1897.' Ball was connected with the company until 1897, and his testimony is to the effect that- the company was not able to pay- up to that time. The defendant was bound to, but did not show its ability to pay at any time which would have set the statute running. At the trial there were admitted in evidence, under objection and exception, certain letters written in 1893,1896 and 1900, by the treasurer of the defendant tending to show that the company was not able to pay its debts in the course of business and It does not appear anywhere that ' Tupper had authority to make declarations or statements to bind the company. -But the error (if any) in allowing those letters to be read, is harmless, in view of the obligation resting upon the defendant to show affirmatively its ability to pay and its failure to do so. ■

As to the counterclaim, it appears in evidence tliat Porter independently and personally advanced to the company • $1,000 as a loan and received therefor a receipt similar in its terms to that given to . Ball upon which this action is founded. . It was proven that if any one was responsible for the amount of this counterclaim it was Porter, but he testifies that when he advanced his $1,000 to the company' he. asked the president, Mr. Ide, for a receipt, and Ide stated that he could not give it, inasmuch as there was the indebtedness of $849 due to Tolhurst; but in a subsequent conversation upon the subject, Porter told Ide that it must be clear to his mind that previous to the organization of the company he, Porter, had told them that the indebtedness existed and that it was agreed between them that the company should pay that bill and assume that indebtedness, to which Mr. Ide responded that he failed to remember that. However, a receipt was subsequently given and thereafter the amount of the loan was paid to Porter by the company in full, with interest, and nothing was claimed and nothing deducted for the indebtedness which was alleged to be due to Tolhurst. The court instructed the jury that it was for them to determine from the evidence whether or not the understanding was that the machinery was to be free and clear from incumbrance; and there was no exception taken to that instruction.. We have examined the exceptions and do not find any of them of such a character as to require a reversal of the judgment.

The judgment and order appealed from should be affirmed, with costs.

Ingraham and Clarke, JJ., concurred; Laughlin and Houghton, JJ., dissented.

Judgment and order affirmed, with costs.  