
    DAVID M. HUGHES, Plaintiff and Respondent, v. THE CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY, Defendant and Appellant.
    Before Sedgwick and Freedman, JJ.
    
      Decided March 14, 1879.
    Pleadings.—Practice.—Order requiring defendant to make ANSWER MORE DEFINITE AND CERTAIN.
    As a general rule, such an order is not appealable. Held, that in this case, the order made deprives the defendant of a substantial right. , '
    The parts of the answer objected to are confined to denials, and the substance and form thereof. There is no attempt to claim any affirmative right from the plaintiff. In no instance in which the order directs the amendment of the answer, is there any doubt or uncertainty that the answer either puts in issue or admits the corresponding allegations of the complaint. Held, that no amendment is possible which would make the denial or admission any clearer, and the defendant should not and cannot be compelled to submit to the constructions which the plaintiff makes in the complaint of the trust deed, which was the foundation of the action.
    The order should not have given the plaintiff leave, in case the defendants did not amend, to apply for judgment. The relief should not have extended beyond striking out the allegations complained of; for if these allegations were stricken . out, there was still an issue left to be tried before the plaintiff was entitled to judgment. This part of the order affects a substantial right of the defendant, and is appealable.
    
      Appeal by defendant from order requiring answer to be amended so as to make certain allegations more definite and certain.
    The court ordered in terms that the defendant make its answer definite and certain in four specified particulars, and stated the means by which the answer should be made so. The defendant was commanded to deny or admit “ directly and unequivocally ” three specified allegations in the complaint. As to a fourth allegation of the complaint the defendant was, in one supposed condition of the facts, ordered to deny a specific thing, and in another supposed condition of the facts it was ordered to admit or aver another thing. It was likewise ordered to make “ upon knowledge” one of the denials or admissions which it was ordered to make, and it was also ordered to make, “upon knowledge,” another denial which it had, in the alternative, the privilege of making.
    To these provisions of the order was superadded the penalty of allowing the plaintiff to apply to the court for judgment in case the defendant should make default in amending.
    From this order the defendant appeals.
    The pleadings are printed below, those portions of the answer to which the order applies being printed in italics:
    The complaint alleges : First—That the defendant, the Chicago, Milwaukee & St. Paul Eailway Company, is a corporation incorporated by and under the laws of the State of Wisconsin ; that it was incorporated under the name of “ The Milwaukee & St. Paul Eailway Company,” which name the legislature of the State of Wisconsin changed to that of “ The Chicago, Milwaukee & St. Paul Eailway Company;” 'that it has an office and place of business, and property, in the city of New York; that the causes of action herein set forth arose in the city of New York.,
    Second—That on or about November 30, A.D. 1864, the defendant, under the name of the Milwaukee & St. Paul Railway Company, became indebted to various persons and corporations in the sum of $1,500,000, which indebtedness was evidenced by the issue and delivery of its bonds in the sums of $1,000 each, to the amount above named, which bonds were dated November 30,1864, and each of them contained a promise to pay the bearer the sum of $1,000, lawful money of the United States, on October 1, A.D. 1884, with interest at the rate of seven per cent, per annum, payable semi-annually on the first days of April and October in each year, in the city of New York.
    That to secure the payment of said bonds the defendant executed, acknowledged and delivered a mortgage or trust deed, dated November 30, 1864, to John P. Yelverton, and to the plaintiff, a copy of which said deed, except the signatures thereto and the acknowledgment thereof, is hereto annexed, marked Exhibit A, to which the plaintiff refers, and makes the same a part of this complaint.
    That said Yelverton and the plaintiff accepted the trust established in and by said trust deed, and signed a certificate upon each of the above- described bonds.
    That since the execution and delivery of said deed, viz., on or about the day of , 1865, the said Yelverton died, leaving the plaintiff the sole surviving trustee ; that by the terms of said trust deed, all the powers and duties imposed in and by said deed, and all the compensations to be given for the performance thereof, devolved upon the plaintiff herein, as the survivor of said trustees.
    That it was mutually agreed in said trust deed, that the defendant, for the purpose of ultimately paying or reducing the bonds secured by said trust deed or mortgage, covenanted and agreed that it would, commencing on July 10, 1865, on or before the 10th day of October, January, April and July in each year, pay to said Yelverton and Hughes, trustees, or to the survivor of them, or to their or his successors or successor, as and for a sinking fund, the entire net income or earnings of the grain elevator erected by the defendant at Milwaukee, for the three months preceding the first day of each of said months above named.
    The plaintiff avers, that as he has been informed by the reports of said defendant, and otherwise, and he verily believes, the net income and earnings of said elevator, from July 10,1865, to February 1, 1878, without regard to interest thereon, was over the sum of $1,500,000, and more than sufficient to pay the entire mortgage debt due to the plaintiff as trustee.
    The net income or earnings of said elevator are shown by Exhibit B, hereto annexed, and made a part of this complaint.
    That in and by said trust deed, it was further agreed by the defendant, with the plaintiff, that he, the plaintiff, should receive from the defendant, for his services in applying the money derived from said payments promised to be made by defendant, the sum of one-half of one per cent, on the par amount of bonds purchased or canceled, exclusive of costs and disbursements, all of which, on reference to said trust deed, will fully a,ppear ; which one-half of one per cent, upon the $1,500,000 of bonds issued, amounts to the sum of $7,500.
    That plaintiff has always been ready and willing to perform the duties and trusts devolving upon him under said trust deed, and has often demanded of the defendant payment to him, as trustee, of the income of said elevator, in order that plaintiff might perform the duty of purchasing and canceling said bonds with said income, and otherwise comply with the provisions of said trust deed ; but said defendant has always refused to perform its covenants contained in said trust deed, and, disregarding its promises, covenants and agreements, as made therein, has never fulfilled its obligations therein made, and has never paid to the plaintiff the net income and earnings of said elevator, or any other sum; but that, contrary to its covenants and agreements, it has itself, or by others than the plaintiff, purchased or redeemed said bonds, or the larger part thereof ; the exact number is to the plaintiff unknown.
    All of which is to the damage of the plaintiff the sum of $7,500, with seven years’ interest thereon, on the average time from October, 1865, to this date ; amounting in all to the sum of $10,725.
    The answer is as'follows : Defendant admits that it is a corporation, incorporated by and under the laws of the State of Wisconsin; that it was incorporated under the name of the Milwaukee & St. Paul Railway Company, which name the legislature of the State of Wisconsin changed to that of the Chicago, Milwaukee & St. Paul Railway Company; that it has an office and place of business, and property, in the city of New York.
    It denies that the alleged causes of action in the complaint set forth arose in the city of New York, or arose at all.
    It admits that on or about November 30, A. D. 1864, it, under the name of the Milwaukee & St. Paul Railway Company, became indebted to various persons and corporations in the sum of $1,500,000, and that such indebtedness was evidenced by the issue and delivery of its bonds in sums of $1,000 each, and that said bonds were dated November 30, 1864, and that each of them contained a promise to pay the bearer the sum of $1,000, lawful money of the United States, on October 1, 1884, with interest at the rate of seven per cent, per annum, payable semi-annually on the first days of April and October in each year, in the city of New York.
    It admits that, to secure the payment of said bonds, it executed, acknowledged and delivered a mortgage or trust deed, dated" November 30, 1864, to John P. Yelverton and to the plaintiff, and it believes, according to its present information, that a copy of the said deed, except the signature thereto and the acknowledgment thereof, is annexed to the complaint, and marked Exhibit A, but, for greater certainty, it begs leave to refer to the original, when produced.
    
    It admits that said Yelverton and the plaintiff accepted the trust established in and by the said trust deed, and signed a certificate upon each of the above described bonds.
    It admits, that since the execution and delivery of said deed, the said Yelverton died, but avers, upon information and belief, that said Yelverton died on or about January 10, 1867, and denies that he died on or about the day of , 1865..
    And it admits that when the said Yelverton died, he died leaving the plaintiff the sole surviving trustee; but upon information and belief, it denies that by the terms of the said trust deed, all the powers and duties imposed in and by said trust deed, and all the compensation to be given for the performance thereof, devolved upon the plaintiff as survivor of said trustee, and although it says it is true that all the powers and duties imposed in and by sa,id deed would have devolved upon the plaintiff as srirvivor of the said trustee, if the plaintiff had continued to be competent to perform the duties of the said trust, or to perform the functions devolved upon the trustees in and by said trust deed.
    
      It denies that otherwise than as expressed in said trust deed, it was mutually agreed in said trust deed as is in that behalf in the complaint alleged, and for 
      
      the accurate terms of the agreement in that behalf , this defendant refers to the said trust deed or mortgage.
    
    
      And upon information and belief, this defendant denies that the net income and earnings of said elevator, from July 10, A. D. 1865, to February 1, 1868, with or without regard to interest thereon, was over the sum of $1,500,000, or that it was more than sufficient. to pay the entire mortgage debt specified in the said mortgage; and, upon information and belief, it denies that the plaintiff has been so informed by the reports of this defendant, and it denies that the said entire mortgage debt is or was due to the plaintiff as trustee.
    And, upon information and belief, it denies that the net income or earnings of said elevator are shown by Exhibit B, annexed to the said complaint.
    
      And it denies that any agreement was made by this defendant with the plaintiff as to what the plaintiff should receive from the defendant, for his services, for applying the money derived from said payments promised to be made by the said defendant, as in said complaint in that behalf alleged, otherwise than as appears by the. terms of the said trust deed or mortgage.
    
    It denies that the plaintiff has always been ready and willing to perform the duties of the trust devolved ■upon him under said trust deed, and, on the contrary, it alleges that the said plaintiff, in and about the year 1864, became and was disqualified to act as trustee under said trust deed, or to perform the duties or trust devolving upon him under said trust deed.
    And, upon information and. belief, it denies that the plaintiff has often demanded of the defendant payment to him as trustee of the income of the said elevator, in prder that the plaintiff might perform the' duty of purchasing and canceling the said bonds with said income, and otherwise comply with the provisions oí said deed.
    And it denies that it has always, or at any time, refused to perform the covenants in said trust deed, or that it never has fulfilled its obligations therein made.
    It admits that it has never paid to the plaintiff the net income or earnings of said elevator, or any other sum.
    It admits that it has itself, or by others than the plaintiff, purchased or redeemed said bonds, or a larger part thereof; but it denies that such purchase or redemption has been or is contrary to its covenants and agreements : and whether or not the exact number of the bonds purchased or redeemed by itself or by others than the plaintiff, is unknown to the plaintiff, it denies any knowledge or information sufficient to form a belief.
    And it denies that any of the matters or things in the said complaint alleged are to the damage of the plaintiff in the sum of $7,500, with interest thereon, or otherwise.
    
      T. N. Bangs, for appellant.
    
      C. D. Ingersoll, for respondent.
   By the Court.—Sedgwick, J.

I regret that I am not able to agree to affirm the order appealed from. The order requires that the answer be made more definite and certain. As a general rule, such an order is not appealable. In this instance, however, I think it is impossible to make the pleading more definite than it is, in such respects as the defendant has a right to confine the pleading to, and that the order made deprives the defendant of a substantial right. The parts of the answer objected to are confined to denials, which put the plaintiff upon proof of his case, with perhaps one exception. There is no attempt to claim any affirmative right from the plaintiff. Now, to my mind, in no instance in which the order directs the amendment of the answer, is there any doubt or uncertainty that the answer puts in issue or admits the corresponding allegations of the complaint, and no amendment is possible which would make the denial or admission clearer. And in the instances referred to, I think the defendant had a right not to be forced to submit to the constructions which the complaint made of the trust deed which was the foundation of the action.

The complaint alleges “ that to secure the payment of” certain bonds the defendant executed and delivered a mortgage or trust deed, dated November 30, 1864, to J. P. Y. and to the plaintiff; a copy of which deed is “ hereto annexed,” to which the plaintiff refers, and makes the same a part of his complaint.

The answer admits the execution and delivery of a deed dated November 30, 1864, to J. P. Y. and the plaintiff, and “ it believes, according to its present information, that a copy of the said deed ” “is annexed to the complaint,” “ but for greater certainty, it begs leave to refer to the original, when produced.”

If there is any certainty as to the rules of pleading, it is certain that these allegations do not put in issue the fact of the deed. No denial, upon information and belief, or of any other kind, is attempted. As to the deed, it is certain that the answer requires no proof from the plaintiff. The answer reserves or claims a right to refer to the original, when produced. There is no uncertainty as to the terms of this claim. It does not affect any preparation that the plaintiff should make for trial. Whether the allegation is redundant or irrelevant was not discussed, nor did the motion below make a claim that it was. It appears to be an effort to claim a remnant of a right that a defendant had, to require before pleading the production of the deed itself, in order that among other things he might see the seal, the mode of execution and the witnesses. For before that sight he was not conclusively bound, as it is said he is now bound, to know whether or not he made the deed. In this present instance, it is to be remarked that the complaint avowedly omits the signatures and acknowledgment. If it were irrelevant or redundant, it would be simply stricken out on motion of a party aggrieved by it, but the order directed “ that the same be made definite and certain by the defendant directly and unequivocally denying or admitting on knowledge the alleged copy to be a true copy.” This order trenches upon the system of pleading in the Code, for that does not call for a direct and unequivocal denial or admission. There is a right of making no reference to the allegation of the complaint, and that, while it results with certainty in an admission, is not a direct admission. Moreover, in effect, the order relieves the plaintiff of something which at least is as much his duty as it is the defendant’s. Both sides admit the making of the deed. Why should the plaintiff call upon the defendant to verify the accuracy of the copy, or to admit or deny its accuracy, when he has himself already undertaken to vouch for the accuracy, by setting it out as a copy.

It seems to me, that substantial justice is with the defendant. The plaintiff places his rights solely upon the original deed. The defendant does not deny that a copy is annexed to the complaint, but only asks that, when produced, the original deed may be referred to.

I do not, however, think, if the order had not given leave (in case the defendant did not make this allegation certain) to the plaintiff to apply for judgment, that this part of the order would be appealable. No substantial right of the defendant would have been affected.

As to the next amendmént ordered, lam of opinion that the uncertainty and indefiniteness were on the part of the plaintiff, not of the defendant.

The complaint, had set out what was the agreement, by setting out the terms of the deed. It was unnecessary and redundant to re-state what was contained in it. It would have been proper for the plaintiff to allege that it was covenanted or agreed by a certain deed, &c., without setting out the terms of the deed. At the least, if he proceed to re-state the contents of the deed, he should do it in conformity with the terms of the deed, and accurately. But the complaint alleged that 11 it was mutually agreed in said trust deed that the defendant covenanted and agreed that it would pay to the trustees the net income of the grain elevator,” &c. It is hardly necessary to say that there was no mutual agreement that the defendánt covenanted, &c. It was a covenant by defendant. Probably this was a mere slip of the pen, but there was no obligation on the part of the defendant to correct the complaint, and in the exercise of an undoubted right, not evasively, but in direct accordance with" the truch and with no uncertainty of allegation, the answer denies that otherwise than as expressed in said trust deed, it was mutually agreed in said trust deed, &c., and justified by the incorrect allegation of the complaint says:' “for the accurate terms of the agreement in this behalf, this defendant refers to the said trust deed or mortgage. ’ ’ This also shows, that so far as the accuracy of the copy was concerned the defendant had a sort of justification for referring to the original, as was done in the former part of the complaint. This denial did not in any manner embarrass the plaintiff. The trust deed was enough for his action.

The next amendment refers to this part of the complaint, viz.: “that, as he has been informed by the reports of said defendant, and otherwise, and he verily believes, the net income and earnings of said elevator from, &c., without regard to interest thereon, was over the sum of $1,500,000, and more than sufficient to pay the entire mortgage debt due to the plaintiff as trustee.” It is evident that the allegations of the answer are definite and certain. They are “ and upon information and belief, this defendant denies that the net income and earnings of said elevator, &c., with or without regard to interest, was over the sum of $1,500,000,” “ or that it was more than sufficient to pay the entire mortgage debt specified in the said mortgage.” They may have the defects of a negative pregnant, but that does not imply indefiniteness. That was formerly attacked only by special demurrer, and in substance, it is an omission to deny some fact that may exist consistently with the negative allegation, and which is enough to give an action (1 Chitty's Pl. 536, 613). There is no doubt of the omission and no uncertainty.

But it is said that the defendant is bound to know ■ what was the income of the elevator, and should therefore allege what it was. If this be so, it does not tend to uncertainty in what is alleged. Nor is the presumption of knowledge any different in case of a corporation, than it is of a natural man. For the purpose of legal responsibility the owner of an elevator would be held to know what the income of it was, but he might not have actual knowledge. His agents might operate it. If he himself signed a note or deed, the nature of the act is entirely different.

It does not appear that any report of defendant was such as to bind them absolutely if there were a mistake as to the fact. The plaintiff’s rights do not rest upon the report, but upon the fact. One year, one set of officers may make a .report of the net income, which may be mistaken in amounts received, and in the amounts to be charged to ascertain the net income. Cannot another set of officers and even the same, allege that the net income was not as the report stated ? But, there is no presumption, but that the reports sustain exactly what the answer says by denial, that at least the income was not over a certain sum, alleged by the complaint. The answer, in making the alternative allegation, pursues, in my opinion, the usual and proper mode of pleading.

Another amendment relates to this part of the complaint, viz. :

That in and by said trust deed it was further agreed by the defendant, with the plaintiff, that he, the plaintiff, should receive from the defendant for his services in applying, &c., the sum of one half of one per cent, on &c:,. all of which, on reference to said trust deed, will fully appear, &c.

On referring to the trust deed, it appears that the agreement was that the trustees, their successors or survivors,' should have the compensation, the commissions to be in full payment of both trustees, and to be equally divided between them. This is not an agreement that the plaintiff, one of the trustees, shall have the compensation. The defendant might have simply denied the allegation, but instead thereof, says in certain definite and unequivocal language that he denies that there was any other agreement for compensation for the plaintiff’s services than such as the trust deed shows. The plaintiff, instead of being content with the unequivocal words of the deed, gives an erroneous construction of it, and cannot complain that the defendant takes proper means to prevent its being bound by that erroneous construction.

It should be noticed that here the plaintiff does what he has complained of the defendants doing. He says, “ all of which on reference to said trust deed will fully appear.”

In fine, I am not able to see how" the defendants could mkke his allegations more definite, whatever other objections you may suppose.

I am further of the opinion that the order should not have given the plaintiff leave, in case the defendants did not amend, to apply for judgment, and that the relief could not have gone beyond striking out the allegation. If these allegations were out, there was an issue left to be tried before the plaintiff was entitled to judgment.

I think the order should be reversed, with $10 costs and disbursements to be taxed.

Freedman, J., concurred.  