
    THE STAFFORD PAVEMENT COMPANY, Plaintiff and Respondent, v. JOSEPH A. MONHEIMER, Defendant and Appellant.
    I. PLBADÍNGS, BFFBOT OF.
    
    1. INVALIDITY OF CONTRACT, SUED ON.
    («.) When it cannot be raised under the answer.
    1. When the answer expressly admits the making and existence of the contract and contains no allegations apprising the plaintiff that the nullity of the contract is meant to be relied on.
    
      (a). General Denial; whether the illegality could be proved under a general denial, quaere.
    8. FALSE STATEMENTS AND REPRESENTATIONS.
    1. When they cannot be pboved although alleged in the
    ANSWEB.
    («). Under an answer which neither seeks to avoid the contract sued on for fraud, nor contains any allegation of an intent to defraud, nor claims that there was a mutual mistake as to the facts, in respect to which it is claimed that the false statements were made, nor avers that the statements related to material facts, they cannot be proved. 1
    
    Before Monell, Ch. J., and Sedgwick, J.
    
      Decided April 3, 1876.
    H. EVIDENCE, INCOMPETENT.
    
    1. ADMISSION OF, .WHEN NOT CAUSE FOR REFUSAL.
    
      {a.) Where the fact which the evidence was introduced to prove, is fully established by other uncontroverted competent evidence.
    
    1: Instance. Where the fact is asserted in the recital in an instrument executed by the party objecting to the incompetent-evidence, and he offers no proof to countervail his admission in the instrument.
    Appeal from judgment.
    The complaint was upon contract made by the de fendant, whereby, for and in consideration of the plaintiff granting a license to the defendant to use certain patents owned by plaintiff, for a certain kind of new and improved pavement for streets, the defendant covenanted 16 to use and employ his best endeavors to obtain contracts for laying said pavement on the streets of the said Metropolitan Police District,” and to pay the plaintiff twenty-five cents for each square yard of pavement to be laid by him.
    The answer admitted that the contract was made as averred in the complaint 'and that the defendant had laid the pavements specified in the complaint, and denied the allegations of the complaint not admitted.
    The answer further alleged that the plaintiff had ‘1 been fully paid any or all sums of money, which have become due” under the said contract.
    There were affirmative defenses, which there was no attempt to sustain upon the trial. The answer also alleged that before the making of the agreement “ certain statements or representations were made to the defendant, by and in behalf of the plaintiff, in respect of the character, value and cost of the pavement, the right to make and use which, was claimed by the plaintiff to be secured by the said alleged letters-patent, which statement and representations were in many respects false and untrue ; that by means of such statements and representations this defendant was deceived by said plaintiff, and induced by said plaintiff to enter into the said contract or agreement with the plaintiff, and that by reason of the said statements and representations and the falsity thereof, the said contract, became worthless to this defendant and impracticable for any beneficial purpose, and that this defendant has been put to great expense and sustained damage thereupon in the sum of $25,000.”
    Upon the trial, the court directed the jury to find .a verdict for plaintiff.
    
      Gratz Nathan, attorney, and of counsel for appellant, on the points decided, urged:
    The court erred in refusing to' allow the defendant to prove the facts which he offered to show. The plaintiff’s objection that the false representations alleged should have been pleaded specifically has no force. If the plaintiff desired such specification, he might have made a motion for a bill of particulars. Having gone to trial on the pleadings as they stand, he can not now object that the pleading is not specific as to details. The testimony that was excluded was material, not only in support cf the defendant’s counter-claim, but also in bar of a recovery, for if the defendant had proved under such offer the facts alleged, the plaintiff would not have been entitled to any relief in a court of equity. The court would have refused to enforce the covenants of a contract against a party who had been induced to make the contract by the false or fraudulent representations of the plaintiff.
    
      
      E. M. Wight, attorney, and Henry Broadhead, of counsel for respondent, on the questions decided by the court, urged :
    I. It would appear that the answer, instead of admitting the contract sued on, should by a defense of non est factum or in some other way raise the issue of the defense of immorality or illegality.
    II. This answer shows no counter-claim. It squints toward a cause of action for fraudulent misrepresentation, but- there is no allegation of that kind in it. It doesn’t even allege false representations of any existing issuable fact. “Certain statements” were made “in respect of tbe character, value and cost of the pavement ; ” and some of these statements were not true, whether it was as to the character of the pavement, not its moral character nor its characteristic construction, which could not be issuable facts ; or whether it was as to its value, which could not be an issuable fact; or as to its cost, which would seem to depend somewhat upon tbe price of lumber; it don’t appear in respect of what representations defendant was deceived. In an action of fraud (and a counter-claim must be a good complaint), the particular fraud is the gist of the action. On a trial an allegation of mistake can not be amended so as to allege fraud and the judgment sustained. And the particular fraud must be proved as laid. In an action to recover the purchase price of a quantity of barley, the answer alleged that plaintiff represented it to be good first quality merchantable barley, and that defendant’s agent who made the purchase relied upon the representation that the barley was not merchantable, which fact was known to the plaintiff. Held, that this answer did not raise an issue of fraud, and evidence offered in proof was excluded (Lifler v. Field, 52 N. Y. 621). But the offer to sustain the insufficient allegations of the counter-claim in the action at bar, was only by proof of the declarations of a deceased officer of plaintiff, whose authority to defraud defendant was not shown (Watson v. Bennett, 12 Barb. 196 ; Ayer’s Case, 25 Beav. 520).
    Both counsel submitted points on the question of the illegality of the contract.
   By the Court.—Sedgwick, J.

The two most important exceptions argued upon this appeal, cannot be examined upon their merits, because they relate to possible defenses, which are not made by the answer. The first is, that the contract was void as against public policy. At the common law, such a defense might have beemmade, under the general issue, although the defendant was at liberty to plead the illegality specially. It is unnecessary to say whether, under our system of pleading, an illegality sufficient to make a contract void, could be proved under a general denial; for the answer expressly admits the making and existence of the contract and there are no allegations which apprize the plaintiff, that the defendant means to rely upon the nullity of the contract. The second is, that the contract became void by its terms, when at the expiration of sixty days the defendant had not procured the contract for paving Seventh avenue. This defense is not made by the answer, nor is it therein alleged to be the' fact, that the contract was not obtained within that time.

Certain assignments of the patent, for the improved pavement, were admitted in evidence, upon objection, without legal proof of their execution. Their admission was no doubt due to a hasty construction (such as has to be made in the hurry of a trial) of the terms of a stipulation. Their admission was harmless, because the recitals of the contract established all and more than could have been proved by the assignments. The contract recited, as a fact, that the patent had been issued and was owned by the plaintiff. There was no defence in the answer asserting that the plaintiff was not owner, and if there had been, no evidence was offered by defendant to countervail hjs admission in the contract.

The defendant placed a witness on the stand and put to him questions for the purpose of showing that the president of the plaintiff made certain false statements and representations, as alleged by the answer and that the allegations of that part of the answer which related thereto were true. This was properly overruled. The answer made the allegations referred to, not for the purpose of avoiding the contract for fraud, but to show damage in the amount specified. No damages could however be claimed, in the absence of fraud, and there was no allegation of an intent to defraud or its equivalent or offer to prove it. Nor did the defence claim that the contract was made upon a mutual mistake, as to the facts which were asserted by that part of the statements which it was generally alleged were untrue. Nor did the defence allege that, that part of the statements said to be untrue related to material facts (Phillipi v. Conklin, 58 N. Y. 683).

There were other exceptions, which it is unnecessary to state, as they were not important, and we think that the judge was clearly right in the rulings as to which they were made.

The judgment is affirmed wi;h costs.

Monell, Ch. J., concurred.  