
    Gardner v. Clark.
    Pleading.— Waiver.
    
    Under the Code, a defence in the nature of a plea in abatement may be joined with one in bar, iu the same answer; but when the case goes to the jury on both defences, there must be separate findings on each.
    In an action by the assignee of a claim, a plea that the defendant was arrested upon a copias, at the suit oE the assignor, is insufficient, as a plea of Us pendens; nor is it helped by an averment that tile copias was for the same cause of action—no declaration having been filed or served.
    A party entitled to payment, on the delivery of each wagon-load of goods, does not waive that right, by frequent deliveries, without exacting payment.
    * Appeal from the general term of the Supreme Court, in the fifth district; where judgment upon a verdict in favor of the plaintiff had been affirmed.
    This was an action, by the assignee of Adison Gardner, to recover damages for the non-performance of a contract to sell and deliver 1000 bushels of barley, at forty-four cents per bushel. .The barley was to be delivered at the storehouse of Gardner’s agent, and to be paid for, as delivered. The answer averred a delivery of a portion of the barley, and that the defendant had always been ready and willing to deliver the residue, but that Gardner was not ready and willing’to receive and:pay for the same, according to the terms of the contract. The evidence upon this point is stated in the opinion of the court.
    The defendant also averred', for further answer, that in November 1847, Adison Gardner, being the sole party in interest in the contract which was the subject of this action, commenced a suit against him in the supreme court, by writ of copias, by virtue of which he was taken and held to answer; “ and that by said writ and arrest, a former suit was' commenced by Adison Gardner against him, the defendant, for the same identical cause of action, which was still pending, and not discontinued.”
    Upon the trial, the defendant offered evidence in support of his averment of a former suit pending, in the terms of the answer. The judge excluded the evidence, holding that it constituted no defence; that the defendant, by interposing a defence on the merits, had waived the matter pleaded in abatement (See 6 How. Pr. 449); '""to which an exception was taken. There was a verdict for the plaintiff; and the judgment entered thereon having been affirmed at general term, the defendant took this appeal.
    
      Kernan, for the appellant.
    
      Beardsley, for the respondent.
   Selden, J.

It is quite certain, that the judge at the circuit erred, in supposing that, by including a defence upon the merits in the same answer with the defence of a former suit pending for the same cause of action, the defendant had waived the latter defence. A doubt at one time existed, whether the Code had abrogated the rule of the common law, which required matters in abatement to be first pleaded and disposed of, before pleading in bar to the action; and there were, in the supreme court, conflicting decisions upon the subject. The question, however, came before this court in the case of Sweet v. Tuttle (14.N. Y. 465), where it was held, that the Code provided for but a single answer, in which the defendant is required to include every defence upon which he relies to defeat the action. This decision must be considered as settling the question.

The only serious inconvenience suggested, as likely to result from this construction of the Code is, that when an answer embraces both a defence in abatement and in bar, if the jury find a general verdict, it will be impossible to determine whether the judgment rendered upon the verdict should operate as a bar to another suit for the same cause of action or not. It would, however, be the duty of the judge at the circuit, in such a case, to distinguish between the several defences, in submitting the cause to the jury, and require them to find separately upon them. In that way, it is probable, that the - confusion which might otherwise result, may, in most cases, be avoided. At all events, the Code admits, I think, .of' no other construction.

The judge, therefore, was not justified in rejecting the evidence offered at 'the trial to show the pendency of a former suit *for the same cause of action, upon • . ’ r the ground that this branch of the defence had been waived, by including in the answer a defence upon the merits. If, howóver, for any other reason, the evi-» dence was inadmissible, its exclusion should be sustained. The judge gave another reason for rejecting it, viz., that “ such former action pending was no defence to this action.”

It is argued, in support of this ground for excluding the evidence, that, although the pendency of the suit commenced by Adison Gardner would have been a good answer to another suit brought by him, while he continued to own the demand, it is, nevertheless, no answer to a suit brought in the name of the assignee? after the assignment to her. This would, I think, be a question of some difficulty, if it were really presented; but, in the view I take of the case, it does not become necessary to pass upon it.

The extent of the allegation in the answer on the subject of a prior suit is, that a copias ad respondendum was issued “ in a plea therein mentioned,” and that the-defendant was arrested upon the writ and held to answer “ in a. plea as aforesaid,” and-that, by this writ and taking, a former suit at law was commenced for “ the same identical cause of action,” <fcc.

Now, it is clear, that these allegations do not make out the pendency of such a suit as would be any defence to this action, .were it .brought in the name of Adison Gardner himself. Under our former system of practice, the .cause of action could not be determined from the copias ad respondendum alone; even if the copias contained what was called an ac cetiam clause, that is, a- clause stating in general terms the nature and form of the action intended, still the only consequence of declaring in any other form, and for any other cause of action, was, that the plaintiff thereby waived all right to bail in the action, if bail would otherwise have been required. But the allegation here is, simply, that the defendant is held to answer in a plea mentioned in the writ; for aught that appears, the copias issued -was the ordinary writ requiring the defendant to answer in a plea of trespass only; in which case, the plaintiff *was at entire liberty to declare in such form and for such cause of action as he might see fit. Until a declaration was filed or served, therefore, it was impossible, in a suit commenced by copias, to ascertain what the real cause of action would ultimately be. The allegation'that the suit was for “the same identical cause of action,” is not supported by the facts upon which it is predicated, and adds nothing whatever to the force of the previous averments. The answer in question, therefore, so far as it sets up the pendency of a former action for the same cause, is palpably defective, and, if demurred to, must have been held entirely insufficient to abate the suit.

The offer made at the trial was simply to prove the facts stated in the answer; the defendant, in making the offer, quoted the language of the answer, as embracing the precise facts which he intended to prove. The inference plainly is, that this was all the evidence which he was prepared to give on the subject; and as these' facts, if proved, would obviously have fallen quite short of making any legal defence, the judge was right in rejecting the evidence as wholly immaterial.

An exception was taken to that part of the charge to the jury, in which the latter was told that, assuming that the defendant was entitled to demand payment for each load of barley, upon its deliverjq yet, if he delivered several loads, without requiring payment, “ it was, in law, a waiver of the condition of the payment for each load, as delivered, and credit was thereby given to Gardner for the barley so delivered.” This portion of the charge is somewhat equivocal, and its accuracy depends upon the interpretation which is given to it. If it meant, that the defendant could no longer insist upon the condition in respect to the barley which had been delivered, it is simply a self-evident proposition. If, on the other hand, it means that, by delivering several loads, without insisting upon payment, the defendant had waived the condition as to the barley still to be delivered, so that upon the delivery of a subsequent load, he could no longer insist upon payment for such load, it was, I think clearly erroneous. I am inclined, ^however, to think, that neither of these is the true interpretation; but that what the judge intended to say, and 'what the jury must have understood him to say, was, that the defendant could not insist upon payment for the barley which had been delivered, as a condition precedent to the delivery of the residue. If this is the true meaning of the language used in this portion of the charge, it was, in my judgment, obviously right.

But the judge carried his views as to the effect of the defendant’s act in waiving the condition as to several of the loads to still greater, and, as I think, erroneous lengths, in the subsequent parts of his charge. He was requested by the counsel to charge, that, “ although the defendant, had not required payment for each load so delivered, so far as the same had been delivered, yet the defendant had a right at any time, upon being ready to deliver a load and offering so to do, to demand payment for such load, and that, upon non-compliance by the plaintiff, the contract was broken on his part.” This request was refused by the judge, and the ground of this refusal is shown by his proceeding to charge that, if the said defendant in- ■ tended to require payment for each load as delivered, for-the barley thereafter to be delivered, and thus change • the practice which he had begun with, he should have • given Gardner reasonable notice that he intended to make such change, and should make demand of payment in such manner that it could have reasonably been complied with on the part of Gardner.”

It is impossible, I think, to sustain the position here ■ taken by the judge. Upon what principle, the omission by the defendant to insist upon his right to payment as. to some of the loads of barley delivered, can operate as a waiver of his right as to the residue, I am unable to per- ■ ceivc. There would, perhaps, be a legal difficulty in the way of its having this effect, even if so intended. A waiver, like a gift, can only operate in prcesenti‘, when intended to operate in futuro, it is, at most, only an agreement to waive, which, it would seem, must, like all other agreements, have a consideration. But, conceding that the defendant might, without any consideration, have '"'bound himself, by agreeing in advance to waive his right to require payment for any portion of the barley when it should be delivered; how can the mere waiver of such right, as to one or more loads, amount to such an agreement? It could, at most, only afford some slight evidence that the defendant did not intend to insist upon payment in hand for the subsequent loads; but would this unexpressed intention, even if entertained, be obligatory upon him? I think not. The contract bound Gardner to have the money ready, at all times, at the place of delivery, to pay for each load as it should arrive; and although he might have some reason to suppose, from the delivery of several loads, without requiring payment, that the defendant did not intend to insist upon payment in hand for the subsequent loads, yet this mere supposition could not release him from the positive obligation of his contract.

■ But it was said upon the argument, that there was no evidence in the case, to which the charge which the judge was requested to make could properly apply; and, hence, the judge was justified in his refusal, even if the principle embodied in the request is regarded as correct. It is true, that a judge is not bound to charge upon a mere abstract proposition, not necessarily involved in the case. If, therefore, there was no evidence tending to show that Gardner had ever neglected or refused to pay for a load of barley, which the defendant had actually offered and was then ready to deliver, the judge would have been under no obligation to .instruct the jury as requested by the defendant’s counsel. But such evidence is, I think, clearly to be found in the testimony of the defendant; he says: “ I went with one load, and stopped and went to Dunham’s, and asked for my pay of Dunham; Dunham said he had nothing to pay with, and I then went and sold the barley to Mr. Crouse.” If this means that, when he called upon Mr. Dunham, at this time, he had a load of barley there, which he was ready to deliver, upon receiving payment for that load, and that all that he asked for was payment for the load he then had, it makes out the case contemplated in the request of the defendant’s counsel. Whether this is the meaning of this ^portion q£ yi6 £eg£imony) wa8 clearly a question for the jury. My conclusion, therefore, is, that the judge erred in refusing to charge as requested, and that for this error, the judgment should be reversed, and there should be a new trial with costs to abide the event.

Judgment reversed, and new trial ordered. " 
      
       See Code of Civil Procedure, § 507.
     
      
       See Goodwin v. Massachusetts Mutual Life Insurance Co. 73 N. Y. 480.
     