
    SOCIETA ITALIANA DI BENEFICENZA, Respondent v. CATHARINE SULZER, Appellant.
    
      Contract, defence thereto ; defendant must elect either to stand upon her' alleged counter-claim and affirm the contract, orto abandon the counterclaim and stand upon the alleged facts.
    
    
      Meld, that defendant could not have the benefits of a valid contract without bearing its burdens. She could not be permitted to affirm in part, and rescind in part. The trial judge properly compelled the defendant to elect either to stand on her alleged counter-claim and affirm the contract, or to abandon the counter-claim and stand upon the alleged facts as a defence. The offered evidence of preparations made by defendant was properly excluded. The only theory on which such evidence might be admissible is that it would show defendant’s belief in the representations made. But no representation is available for that purpose unless it is a' representation as to an existing material fact, and the representations relied upon for rendering the excluded evidence admissible related to mere expectations and not to existing material facts. If defendant wished to rely upon the representations of expectations which she claimed the plaintiff's committee made to her, she should have exacted a guaranty of the number to be present or a guaranty of profits.
    Before Freedman and Dugro, JJ.
    
      Decided July 5, 1892.
    Appeal from judgment entered in favor of the plaintiff upon the verdict of a jury, and from an alleged order denying defendant’s motion for a new trial.
    
      The facts and points fully appear in the opinion of the court.
    
      Lorenz Zeller, attorney and of counsel, for appellant, argued:—
    I. The defendant on the motion of plaintiff’s attorney was compelled to elect to proceed upon the alleged counter-claim in the answer as being a counter-claim or a defence, to which the defendant excepted. This the defendant contends was an error. The defendant was not in a position to claim non-performance until plaintiff had held the picnic and has thus, at least to a certain extent, complied with the contract. If plaintiff made representations and they turned out to be untrue, it amounted either to an actual or constructive fraud, because they had no right to assert as a fact the existence of which, or probability of existence of which, was in future and was only known to them, and in case of constructive fraud it amounted to a guarantee. The plaintiff thereby not only lost the benefit secured to it by the contract but were liable for any damage which the defendant had sustained, and she was not compelled to pay first and then seek to recover the money paid with damages. Garner v. Mangam, 93 N. Y., 642. Under the Code a defendant may set up as many defences or counter-claims as he may have. An objection of inconsistency between them is not available. The contention, that defendant was not bound to elect, is very forcibly sustained in Bruce v. Burr, 67 N. Y., 237, which case, although exactly similar, is far less strong than the case at bar, because the defendant at the trial was allowed to amend setting up as an additional defence and as a counter-claim a breach of warranty. On the continuance of the hearing a similar motion was made to compel the defendant to elect between the defence of rescission and breach of warranty which was denied and the denial sustained.
    
      EE. There is no proof whatever that these three men who signed the alleged contract were the committee appointed by the United Italian Societies or the plaintiff corporation, and the proof of the appointment must be made by the production of the records or books of the corporation containing the entry or resolution of appointment. Owings v. Speed, 5 Wheat., 424; Fister v. La Rue, 15 Barb., 323. And hence the exception to the admission of the alleged contract was well taken.
    III. The defendant concedes that if the Italian Societies had held but one picnic and held it in Sulzer’s Park, the plaintiff could come within the provisions of the contract. They then would have been a united body for the purpose of the picnic. The word “ United ” it is true does not mean each and every one of the United Italian Societies, hut united for a purpose, i. e., to hold a united picnic. Hence, to ascertain the real meaning of the word it was proper for the defendant to show acts and representations of a similar character as those made to the defendant under similar circumstances. Cary v. Houghtaling, 1 Hill; Hill v. Naylor, 18 N. Y., 588.
    IV. If the contention of the defendant prevails that the plaintiff has not proven a legal contract between it and the defendant, then the plaintiff has not established a cause of action and the motion made by the defendant to dismiss, should have been granted.
    V. The exclusion of the testimony offered by the defendant, as to what the defendant did in reliance upon the committee’s representations was clearly an error. The proposed testimony tended to show the probability of the representations as his Honor Justice Freedman well stated on admitting the proposed testimony on the first trial upon a similar objection, and if the defendant was entitled to prove the damages it was exceedingly material for that purpose. In an action for fraud it is competent to show the conduct and subsequent acts in consequence, and upon the faith of the representations. Taylor v. Guest, 58 N. Y., 262; Bruce v. Burr, 67 Ib., 237; 36 Hun, 465; 38 Ib., 577.
    
    VI. It has been repeatedly held in actions of this kind that it is proper and material for a witness to state whether he would have done certain things, but for the alleged representations. I only need to refer- to the learned opinion of Ingraham, J., in King v. Fitch, 2 Abb. Court of App. Dec., 515, and Denio, C. J., in same case for this proposition, and as the question proposed was only preliminary and the learned justice below having been apprised of the nature and effect of the testimony it was error to exclude it. If the defendant could have shown by these witnesses that some of the very societies, who plaintiff claims were at defendant’s place, were in fact at Jones’ Woods, could it be successfully contended that the plaintiff performed his contract? The testimony goes to the very heart of the defence and the exception was well taken.
    
      Warren W. Foster, attorney and of counsel, and Oliver C. Semple of counsel, for respondent, argued :—
    I. It was right to compel defendant to elect either to stand on her alleged counter-claim and to affirm the contract or to abandon the counter-claim as such and to stand on the alleged facts as a defence. Defendant could not have the benefits of a valid contract without bearing- its burdens. She could not assume that it was a valid contract and ask damages under it and at the same time insist that it was not valid, and thus escape payment of its obligations. As the learned judge who presided at the first trial well said : “ If defendant wants to enforce the contract and to recover damages under it (that is, to enforce her counter-claim of $1,000 for loss of profits) she must perform her part and first of all pay the $400 which she agreed to pay on the 20th of September, 1889. If she does not wish to do that, but wants to contest her liability to pay the $400, she must drop her counter-claim. But that counter-claim, being pleaded both as a defence and a counter-claim if withdrawn as a counter-claim, is still available as a defence. It is well settled that a party cannot affirm in part and rescind in part.” If it was improper for any reason to require defendant to make the election, it was not prejudicial error to exclude the counter-claim because a counter-claim would not lie against the plaintiff in this case, for the reason that the plaintiff made no contract with defendant whatsoever, and was under no liability to her. This is true, whether plaintiff sue as a beneficiary under the rule of Lawrence v. Fox, 20 N. Y., 268, or as assignee of United Societies, as admitted by defendant’s answer.
    II. The court was right in excluding the offered evidence of preparations made for the picnic by defendant. The only theory on which such evidence can he claimed to he admissible is that it goes to show defendant’s belief in the representations made. Before this evidence was offered defendant’s manager had testified as to the representations. There is not one scintilla of evidence of any representation of any existing fact. Everything related to the future. “ They were going to he united; that there was nothing going to be only this one affair.” “ It is going to he the biggest thing there ever was in New York. They are going to have from 15,000 to 20,000 people there.” “ They promised me Í would take in a- great deal of money, and I could afford to do it.” “ They will fetch a big crowd, and they will have no other picnics on that day excepting in his place.” “ He should be prepared to expect from 8,000 to 10,000 people.” This is substantially all the defendant’s evidence as to representations of the committee, and the learned judge rightly said: “ The representations, to have any effect and deserve consideration here, must have been as to an existing material fact. Any promise, any representation as to what might take place, is of no consequence and cannot have any weight here. Whatever they said that was untrue must have been said in reference to something that then existed. * * * If they said, ‘ We are going to have 20,000 people; you will make $5,000 out of this. It is going to be a great day.’ That is not a material existing fact. And any evidence of any such promise is not material here.”
    III. If the defendant wished to rely on the statements of expectations, which she claims plaintiff’s committee made to her, it was her privilege, right and duty to exact from the committee a guaranty of the number to be present, or a guaranty of profits. No such guaranty was given, and evidence of defendant’s profit or loss is totally irrelevant, and so is the evidence of defendant’s preparations, help employed, food ordered, other picnics and where held, etc., etc.
    IV. There were only two questions in the case: 1st. Did the committee procure the contract from defendant by representations of existing facts that were false and untrue ? 2d. Was the contract substantially performed on plaintiff’s part ? Now, it will be observed that defendant’s answer pleads but two material representations : (1) That the committee represented all united Italian societies of New York City; and (2) that they were composed of many thousand members; but defendant offered no testimony on the trial of any such representations or of any representations of any existing fact made by the committee prior to the contract, whether true or false. All defendant’s testimony was as to expectations relating to future events. Defendant’s manager was told, when the contract was made, and knew that there were sixteen societies united for the picnic, and that all in New York were not united for it; and it is not disputed or contradicted that the sixteen Italian societies united for plaintiff’s benefit did hold the picnic as agreed in defendant’s park, and that from 900 to 3,000 were present.
    
      Y. The case contains no certificate or statement or proof that the case on appeal contains all the evidence, and therefore this court cannot say that the order denying a motion for a new trial is erroneous as contrary to or against the weight of evidence. Boyer v. Brown, 1 Hun, 715 ; Porter v. Smith, 107 N. Y., 531; Murphy v. Board of Edn., 6 N. Y., Supp. 99.
   Per Curiam.

The case contains no certificate or statement or other proof that the case on appeal contains all the evidence and consequently this court cannot determine that the order denying defendant’s motion for a new trial, if such order was made, is erroneous as contrary to the evidence or as against the weight of evidence.

Moreover, the case contains no order denying motion for new trial. A mere exception to the refusal to grant the motion, it has been repeatedly held, presents no question of fact for review.

For the reasons stated the exceptions only can be reviewed, and, if they are found untenable, the verdict of the jury must be held to have conclusively established that the contract sued upon was not procured from defendant by representations of existing material facts that were false and fraudulent, and also that the contract was substantially performed on plaintiff’s part.

The trial judge properly compelled the defendant to elect either to stand on her alleged counter-claim and to affirm the contract or to abandon the counter-claim as such and to stand on the alleged facts as a defence. Defendant could not have the benefits of a valid contract without bearing its burdens. She could not be permitted to affirm in part and rescind in part. To such a state of facts the case cited by appellant’s counsel (Bruce v. Burr, 67 N. Y., 237) has no application.

The offered evidence of preparations made by the defendant for the picnic was properly excluded. The only theory on which such evidence might be admissible, is that it goes to show defendant’s belief in the representations made. But no representation is available for that purpose, unless it is a representation as to an existing material fact. It was made to appear that the representations relied upon for rendering the excluded evidence admissible, related to mere expectations, and not to existing material facts. If the defendant wished to rely on the representations of expectations which she claimed plaintiff’s committee made to her, she should have exacted from the committee a guaranty of the number to be present or a guaranty of profits.

The questions at issue were fully and fairly submitted to the jury under a charge which carefully guarded every right which the defendant had, and no exception appears anywhere which calls for reversal.

The judgment should be affirmed, with costs.  