
    Abraham Cohen, Appellant, v. Giveen Manufacturing Company, Respondent.
    First Department,
    December 30, 1910.
    Contract—written agreement to repay loan made to third party — evidence — when parol evidence admissible — pleading — waiver of defect by failure to object to evidence.
    Where the assignee of claims for indemnity due under several fire insurance ■ policies in consideration of a loan to the assignor made by the plaintiff, agreed to repay the loan “ upon receipt of payment of Fire Insurance Policies,” parol evidence is admissible to show that the loan was to be repaid when the amount thereof was collected from the. insurer, and was not to be. deferred until the sums due on all the policies had been collected.
    Evidence in an action to recover said loan examined, and held, that the agreement of the parties as to the time of repayment was a question for the jury. •
    Although the complaint in such action did not allege that the loan was to be paid ■ out of the first moneys collected on the policies, and no application to amend the complaint in this respect was made, the defendant by failing- to object to evidence of the actual agreement between the parties waived any objection to the form of the complaint.
    Laughlin and McLaughlin, JJ.,'dissented, with opinion.
    Appeal by the plaintiff, Abraham Cohen, from a judgment off the Supreme Court in favor of the defendant, entered in the office of the clerk of the county off New York on the 14th day of July, 1910, upon the disuiissal of the complaint by direction of the court at the close of plaintiff’s casé on a trial at the New York Trial Term.
    
      Joseph S. Mosalsjcy, for the appellant.
    
      Julius M. Jowehstein, for the respondent.
   Ingraham, P; J.

The complaint alleges that on the 17th of October, 1908, certain fire insurance policies owned by one Ehrlich were transferred and assigned to the defendant by said Ehrlich; that at the special request of the defendant the plaintiff paid to the said Ehrlich- the sum of $1,000, and that on the 3d of February, 1909, the defendant entered into an agreement with the plaintiff whereby defendant, in consideration of the foregoing, agreed to pay the plaintiff the sum of §1,000 upon the receipt by the defendant of the payment of the loss sustained by the said Ehrlich on certain fire insurance policies thereinbefore stated to have been assigned to the defendant.

The allegations of this complaint are not entirely clear as to when the obligation of the defendant to pay to the plaintiff this sum of $1,000 accrued. It is alleged that the defendant was to pay to the plaintiff this sum of money on the payment of 'the. loss sustained by the said A. N. Ehrlich on the certain fire insurance policies aforestated, as hereinbefore stated, to have been assigned.” The answer of the defendant denies the allegations of the complaint to which attention has been called, and then sets up a sepárate defense which is not material upon this appeal.

Upon the trial the defendant conceded that the aggregate amount of the policies assigned to it was $15,500, of which approximately $6,100 had been collected to the date of the trial, and that actions were pending against insurance companies for the balance ; and that about $5,500 had been collected on these policies prior to the commencement of the action. The plaintiff was then called as a witness and testified without objection that Ehrlich introduced plaintiff to one Gans and stated to Gans in the presence of the plaintiff that plaintiff was the man that he (Ehrlich)'“ was talking to yon before about, lie wants to loan me $1,000, and you will give him a writing,” when plaintiff said : Yes, I will give him $1,000 if yon will give me a writing — a written order for it; ” that Ehrlich then said : “ Give him [plaintiff] a written order and then I will give you a wilting for $1,000; ” that Gans then spoke to one of his employees, who went out and in a few moments brought in a paper; that after reading this paper Gans said- to Ehrlich, “ You shall give me a writing ; ” that Ehrlich then gave to Gans a note, when Gans took the paper, signed it, p.ut a stamp on it, and gave it to the plaintiff. This paper was introduced in evidence and is as follows:

“I, the undersigned, L. L. Gans, Treasurer of the Giveen Manufacturing Company, agree to pay Abraham' Cohen, One thousand ($1,000) dollars upon receipt of payment of Fire Insurance Policies, pertaining A. H. Ehrlich’s loss by fire.
“ GIYEEU MFG. CO., ■
“L. L. Gans, Treasurer.”

Plaintiff then testified, that he read this paper over, but not being able to read English well, and noticing that the paper said something about fire insurance policies,, said to Gans, “ What has that got to do with me?” to which Gans replied, “That is all .right, '* * % .You will get your $1,000, the first money what we will get in from the fire insurance policies; ” that plaintiff asked, “ ITow long will it take to get my money, the $1,000?” and Gáns answered, “It will take a couple of weeks;'” that .at the end of two weeks plaintiff asked Gans for the money, when Gans said, “We did. not receive any- money yet, but the first money that will come you will get your $1,000.; ” that lie subsequently again asked for his money, when Gans said, “ We have no money yet; when we will get in the first, money you will get your $1,000.” Plaintiff' paid Ehrlich the $1,000 upon the day of the first conversation. Gans was then called as a witness for the plaintiff, and testified that he was one of the organizers of the defendant, and at the time of .the making of this contract was its president and treasurer, and also a director; that his duties' consisted of signing checks, looking after the general management of the defendant’s business,, supervising and taking a general observation of all that was going, on ; that he signed the instrument introduced in evidence; that the fire insurance policies of Ehrlich were assigned to the defendant, and the defendant had received part of the benefits.of the assignment; that at ,the time he signed this contract for the defendant he had power to sign contracts. ' The plaintiff then rested and defendant moved to dismiss the complaint on the ground that according to tire agreement “ it provides upon payment of the policies, and. it does' not mean- one, two or three, but it means the -payment .of all the policies.” The plaintiff claimed that the agreement was ambiguous,' and that the agreement of. the parties was that plaintiff should be paid out of the first payment that was received by the defendant on account of these policies. The court held that there was nothing ambiguous about the contract, but that it means that the. defendant agreed to pay the plaintiff upon receipt of payment of the policies, which did not mean one' policy, but meant them all, and that .the action had been prematurely brought. The motion to dismiss the complaint was thereupon granted, to which the plaintiff excepted.

I think upon the plaintiff’s testimony there was a question for the jury as to the exact agreement between the parties which was represented by this instrument introduced in evidence. Ehrlich had assigned the policies of insurance to. the defendant, under which the defendant was to collect the amounts due to Ehrlich upon these policies. The relation between the defendant and Ehrlich and the consideration which was paid by the defendant to Ehrlich for this assignment are not stated. We have simply the facts admitted that Ehrlich had assigned the sixteen policies of insurance to the defendant, which would entitle the defendant to collect from the insurance companies the amounts due to Ehrlich upon these policies and that the plaintiff paid to Ehrlich the sum of $1,000, upon receiving from the defendant an agreement by which the defendant agreed to repay to the plaintiff this sum of $1,000, “upon receipt of payment of Fire Insurance Policies, pertaining A. N. Ehrlich’s loss by fire.” Whether it was the receipt of the amounts due upon all the policies was not expressly stated n,or was it stated that the sum of $1,000 should be paid to plaintiff upon the receipt by defendant of any proportion of the policies or when the defendant had received the sum of $1,000 on account of the policies. The defendant did agree to pay plaintiff $1,000 upon receipt of “ payment ” on the fire insurance policies and' for this promise plaintiff paid to Ehrlich $1,000. At least this instrument was capable of the construction that the defendant was to repay the plaintiff $1,000 when he had received a payment of that amount from the insurance companies on these policies. It could not have been the' intention of the parties that the plaintiff was to receive nothing until all the policies were collected, for then a failure of one of the insurance companies to pay or defendant’s inability to collect from any one of them would have entirely destroyed the defendant’s obligation. Nor is it clear from this agreement that the plaintiff was bound to wait until all that was collectible upon these policies had been received before being repaid. It seems to me that this instrument could be construed as- meaning that when defendant liad received $1,000 from the insurance companies it was to pay it to plaintiff as well as the construction claimed by the defendant, and there was, therefore, an ambiguity which justified the court in receiving parol evidence of the actual agreement between the parties. It is said, however, that the complaint as drawn precludes such a construction of the agreement as it is not therein specifically alleged that plaintiff was entitled to receive the $1,000 out of the first moneys paid to the defendant on account of the policies and that as no application was made to amend the complaint we cannot consider the complaint amended for the purpose of reversing the judgment. - But the defendant by failing to object to the receipt of evidence as- to the actual agreement between the parties waived any objection to the form of the complaint, and' as the defendant did not at the trial take the point that the complaint was not sufficient to justify the giving of evidence as to the actual agreement between the parties it cannot now insist on such an objection;'

The motion for a direction of a verdict was made upon the ground that the instrument itself was not ambiguous and that under the instrument' it was necessary to prove that the defendant had received all the moneys payable under these policies which was the point sustained by the-court in its dismissal of the complaint. It seems to me that' upon the evidéncé as it. stood when plaintiff rested, which had been admitted without objection by the defendant, the real question presented to'the court was as to whether or not, upon the evidence, the' plaintiff was entitled to" recover, and upon the evidence as it stood, I think there was at least a question for the jury as to the actual agreement upon which the plaintiff had advanced the money. I concede that the complaint itself was as ambiguous as to the time of payment as was the instrument upon which plaintiff based his cause of action; but where the defense to the action was based solely upon the fact that the agreement itself-was conclusive, defendant failed to object to the admission of testimony as to the actual agreement that existed without claiming that the. complaint was not sufficient to justify the admission of such evil-den ce or to justify a recovery by the plaintiff based upon the actual contract that was made, the defendant cannot, oh appeal, sustain a nonsuit, because if he had objected that the evidence was not admissible under the pleadings, that objection could have been easily obviated by an amendment. Upon this evidence I think the jury would have been justified in finding that, the plaintiff parted with his money upon the understanding that upon the receipt of money upon the policies sufficient to repay him he was to receive the amount advanced,1 and as the defendant admitted receiving,. before the commencement of the action, at least $5,500 on account of these policies, the plaintiff was then entitled to be repaid if it should be found by the jury that that was the express agreement under which the money was advanced.

It follows, therefore, that the judgment appealed from should be reversed and a new trial granted, with costs to the appellant to abide the event.

Millee and Dowling, JJ., concurred; McLaughlin and Laughlin, JJ., dissented.

Laughlin, J.

(dissenting):

The nonsuit was granted on the ground that the action was brought prematurely.

It was admitted on the trial that one A. H. Ehrlich assigned to the defendant sixteen fire insurance policies, aggregating $15,500, as security for an indebtedness owing by him to the defendant; that thereafter the property covered by the insurance policies was damaged or destroyed by fire, and prior to the commencement of the action the defendant had collected on the policies the sum of $5,500, and that actions are .pending for the recovery of .the balance. According to the testimony of the plaintiff and to inferences that may reasonably be drawn therefrom, at the time of or after assigning the policies to the defendant, he had an interview with one Gans, who was president and treasurer of the defendant with respect to giving the plaintiff a writing or order as a condition of plaintiff’s loaning to Ehrlich the sum of $1,000, and Ehrlich thereafter gave Gans an order in writing, the contents of which were not shown, but upon it Gans executed and delivered to the plaintiff a writing as follows:

“I, the undersigned, L. L. Gans, Treasurer of the Giveen Manufacturing Company, agree to pay Abraham Cohen, One thousand ■ ($1,000) dollars upon receipt of payment of Eire Insurance Policies, pertaining A. H. Ehrlich’s loss by fire."
“ GIYEEH MEG, CO.
“ L. L. Gans, Treasurer.”

Ho question is raised with respect to the authority of Gans to act for the defendant in the premises. The plaintiff claim's to have made out a prima, facie case on the theory that the writing quoted was ambiguous and that the parol evidence received without objection shows that the defendant agreed to pay the plaintiff out of the first moneys received on the insurance policies. The respondent contends that the contract is not ambiguous and that the complaint was framed on the theory that .the plaintiff was only entitled to recover after .the defendant collected all that was collectible on the insurance policies, and that as no amendment of the complaint was asked fo'r or allowed, it cannot be amended on the appeal for the purpose of reversing the judgment. It is alleged in the complaint that certain fire insurance policies were assigned by Ehrlich to defendant on October 17, 1908; that plaintiff paid to Ehrlich $1,000 at the special instance and request of the defendant ; that . on or about the 3d day of February, 1909, the defendant in consideration of said payment entered into an agreement with the plaintiff whereby it agreed to pay to him “the sum' of One thousand ($1,000) dollars, upon receipt by the defendant of the.payment, of the loss sustained by the said A. 1ST. Ehrlich, on the certain- fire insurance policies, afórestatod, as hereinbefore stated, to have been assigned; ” and “ that the loss on the insurance policies aforedescribed lias been paid.” It will thus be seen that both by the provisions of the contract and by the allegations of the complaint the plaintiff was to be paid when the defendant received payment on the insurance policies of the loss sustained by Ehrlich. Of course the contract Was susceptible to parol proof to identify the, policies and thus show the loss to which that relates; but when it was ■ shown that Ehrlich assigned sixteen policies representing an aggregate insurance of $15,500, then, I think, there was left no ambiguity in the contract and the plaintiff could not recover without showing that the whole amount of the insurance had been collected, or that it had been collected so far as collectible; or that the defendant had not proceeded with due diligence in collecting it and that a reasonable time therefor had elapsed. So likewise under the allegations of the complaint the plaintiff was only entitled to recover on like proof, for that is the theory of the action as disclosed by the complaint,-and even though a recovery on another theory might have been sustained had the complaint been amended, or even though it might have been amended on appeal to sustain a recovery on another theory, it cannot be amended on appeal to bring about a reversal.

I, therefore, dissent from the reversal of the judgment, and vote to affirm it.

McLaughlin, J., concurred.

Judgment reversed, new trial ordered, costs to appellant to-abide event.  