
    De Bautte v. Curiel.
    (New York Superior Court
    General Term,
    January, 1893.)
    In an action for money "loaned and advanced” the defendants, a copartnership firm, the answer admitted the partnership and denied the other allegations of the complaint. A verdict having been rendered for plaintiffs, defendants appealed and contended that the money was borrowed by their agent for an illegal purpose. Held, that such a defense was in the nature of new matter, avoiding a contract, and should have been pleaded.
    Appeal from a judgment entered on a verdict of a jury in favor of the plaintiffs, and from an order denying a motion for a new trial.
    
      E. J. Myers, for defendants (appellants).
    
      M. B. Guiterman, for plaintiffs (respondents).
   McAdam, J.

The action is for “ money loaned and advanced to the defendants,” a copartnership firm doing business under the title of “ The United Brewers Company.’’ The answer admitted the partnership ¡of the defendants under this title and denied the other allegations of the complaint. It appears by the evidence that the defendants were an importing wine house, and that their business was to sell different brands of wine.

One Farmer was a traveling salesman employed by the defendants, and was in the habit of spending large amounts of money to boom their wines. About the end of April or beginning of May, 1890, Farmer as the representative of the defendants, appointed the plaintiffs agents in New Orleans for the St. Marceaux, a brand of champagne controlled by the defendants.

It also appears that the defendants told Farmer if he ran short of money to draAV on them for Avhatever was needed to meet requirements, and that his drafts Avould be honored. Acting on this authority Farmer had a succession of transactions in which money was borrowed and drafts drawn, and in every instance but the present these drafts were honored and the moneys repaid.

There is evidence also that Farmer’s authority had been revoked before the loan in suit Avas made ; but there is further evidence shoAving that, notAvithstanding this so-called revocation, the defendants had evidently experienced a change of mind, for they continued to honor Farmer’s drafts for loans made up to the time of the very transaction which gives rise to the present litigation.

The case, therefore, turned upon the question whether at the time the loan was made Farmer had subsisting authority to contract the obligation and bind the defendants for its performance. This question Avas fairly submitted to the jury, who found for the plaintiffs, upon evidence satisfactorily sustaining the finding. This practically disposed of the entire case, and there is nothing left but to consider the exceptions taken, many of which are trivial and without merit. The defendants contend that the money was borrowed by Earmer for an illegal purpose. Such a defense is in the nature of new matter, avoiding a contract, and must be pleaded. May v. Burras, 13 Abb. N. C. 384; Hopkins v. Ensign, 11 N. Y. St. Repr. 85 ; Honegger v. Wettsten, 94 bF. Y. 252; Milbank v. Jones, 127 id. 370; O'Toole v. Garvin, 1 Hun, 92; and kindred cases.

We have failed to discover any errors in admitting or excluding evidence, and the judgment and order appealed from must be affirmed, with costs.

Judgment and order affirmed.  