
    Richard Flanagan, Resp’t, v. Peter Mitchell et al., App’lts.
    
      (New York Common Pleas, General Term
    
    
      Filed June 2, 1890.)
    
    1. Building contract — Orders—Acceptance.
    An acceptance of an order made by a contractor ‘ ‘ payable out of ” a certain payment, constitutes a conditional acceptance, and the obligation thereunder does not become due until the condition is fulfilled; but when such payment is made to the acceptor, his liability accrues.
    -3. Same — Consideration.
    A forbearance to file a mechanic’s lien on the faith of such acceptance is a sufficient consideration therefor, and in such case it is immaterial whether the acceptor gained any advantage for the obligation he assumed.
    3. Trial — Error in exclusion or evidence, how cured.
    Where, the appellant was allowed to refresh his memory by referring to a contract, and on a subsequent withdrawal of objections is given an opportunity to put such contract in evidence, but refuses to do so, any error in its original exclusion is thereby cured.
    Appeal from judgment of the general term of the city court of New York, affirming a judgment entered on verdict in favor of plaintiff and an- order denying motion for new trial.
    Action on a draft accepted by defendants.
    
      Ohauncy & Truax, for app’lts; Thomas 0. JEnnever, for resp’t.
   Larremore, Ch. J.

The plaintiff is a plasterer by trade, and prior to September 4, 1886, was engaged in plastering a row of ouildings in Seventy-first street, near West End avenue, under a sub-contract with Messrs. Fonner & Lowther, the builders. It is undisputed that upon said day the following instrument was executed by said builders, delivered to the plaintiff, and accepted as therein stated by the defendants:

September 4, 1886.
“ Gentlemen:
“ Please pay to Bichard Flanagan the sum of $500, and charge the same to our account, and oblige
“ Very respectfully,
“Fonner & Lowther.
“To P. & D. Mitchell,
“ Accepted payable out of standing trim payment.
“P. & D. Mitchell,
“Attorneys for loan."

This action is to enforce payment of such instrument.

The learned trial judge correctly instructed the jury that tne words “Attorneys for loan ” were mere surplusage, to he disregarded, and, further, that the instrument was not to be taken as an ordinary bill of exchange absolutely accepted, hut that defendant's action in the premises constituted a conditional acceptance. The obligation thereunder consequently could not become absolute until the condition therein named was fulfilled. It appears, however, that the complaint contains an allegation that there came-into the hands and possession of defendants a sum exceeding five hundred dollars on account of said standing trim payment, and that they retained and kept the amount from the said Fonner and Lowther on account of the order or draft above mentioned. This allegation is not denied or referred to in the • answer, and must, therefore, be taken as admitted for the purposes of the trial. This is, of course, the strict legal effect of allowing an allegation to go un denied in the pleading, and, furthermore, it hardly seems that, the omission could have resulted from inadvertence, because the-defendant who testified on the trial on this subject would only say that the standing trim payment was never due, and that he did not think it was made as a matter of fact.

This witness further states the conclusion of law that money was never advanced to Fonner & Lowther that ought to have gone to Mr. Flanagan, and adds that the money that Fonner &. Lowther got after all these liens and judgments were,put on was a matter of grace. The question attempted to be raised in such evidence with regard to the falling due of the standing trim payment relates to the construction of the building loan contract toFonner & Lowther. We should be obliged to hold the defendants to their admission in the answer under any circumstances, and a perusal of Mr. Mitchell’s testimony convinces us that no actual injustice results from the application of such technical rule.

But, although the condition of the acceptance must be held to have been fulfilled, the appellant further argues that there was no consideration to support the obligation undertaken by the Messrs. Mitchell. One ground of error assigned is, the exclusion of the-question to one of the defendants, “Did you ever receive any consideration, or did you, as attorneys for the parties making the loan, receive any consideration for this acceptance ? ” We think this-question was immaterial. As between these parties it was not of the slightest consequence whether the defendants gained any advantage for the obligation they incurred. The real consideration here was forbearance on the part of the plaintiff. He testifies that before the draft was signed, there was a request made upon Mr. Mitchell to pay him the money. “ Mr. Mitchell said, he did not owe them money just then ; that he could not advance me (him)» any money, because there was not enough security for the same. Then I said, Mr. Mitchell, I will have to put a lien on the job if you don’t.’ He said, ‘No, I would not do that. * * * If they give you an order I will accept the order on the standing trim payment.’"

Plaintiff’s theory of this action is, that relying on Mr. Mitchell’s acceptance, he did not take immediate steps to secure himself by a lien. This is certainly ample consideration in law to-hold the defendants, and the question whether or not they received anything by way of indemnity or direct profit for their acceptance would be collateral to the issues of the present case.

The defense was also raised that the amount of this draft was intended to be merged into a mortgage subsequently given by the builders to the plaintiff. Plaintiff, on his part, denied that the amount of said draft was included in said mortgage, and that it ever was intended that the same should be extinguished. The evidence was conflicting on this point, and the question was fairly submitted to the jury, and their verdict in plaintiff’s favor must stand. The answer does not allege whether a bond or note or any other instrument accompanied the mortgage. Even if this mortgage had been given as collateral security for the draft and other indebtednesses, said draft, and the right to sue upon it independently, would not have been extinguished.

Counsel for appellant contends that the exclusion of the contract between Andrew J. Skinner and Sarah E. Lowther and. James S. Eonner was error, necessitating a reversal. But this contention cannot prevail. The defendant referred to such contract and refreshed his memory from it in giving his evidence; and subsequently counsel for plaintiff withdrew all objection, and the defendants were given "an opportunity of introducing such contract in evidence at a later stage in the case if they so desired This offer they then refused, and we think that any error that, might have existed by reason of the original exclusion was. thereby cured.

The judgment appealed from should be affirmed, with costs.

Bookstaver, J., concurs.  