
    Pfaudler Process Fermentation Co. v. McPherson et al.
    
    
      (.Supreme Court, General Term, Fifth Department.
    
    January 11, 1889.)
    1. Pleading—Answer—Motion to Make More DEStnite.
    An answer denying that on or about June 4,1883, or at any other time, defendants entered into an agreement with plaintiff that plaintiff should cause certain appa,ratus to he placed in their brewery for their use, and that they agreed to pay for its use, as a royalty, three cents for each barrel of beer manufactured by them, puts in issue an allegation in the complaint of a contract of substantially the same terms made on or about June 4,1883. The defect, if any, is uncertainty and indefiniteness, for which the remedy is by motion to make more definite and certain, as nrescribed by Code Civil Proc. N. Y. § 546. . y
    
      3. Appeal—Review—Findings of Referee.
    A referee’s finding of fact, made upon disputed testimony given by interested witnesses, will not be disturbed.
    Appeal from judgment on report of referee. The plaintiff, a corporation, is the owner of certain letters patent for an improvement in the process of the manufacture of beer and other fermented liquors. The defendants are brewers, residing in the city of New York. The action is upon a contract alleged to have been made by the defendants for the use of the improvement in their business, and a promise to pay a specific sum per barrel for such use. The averment as to the contract, and its terms, is in these words: “ That on or about the 4th day of June, 1883, the said defendants entered into an agreement with the said plaintiff, whereby it was agreed that said plaintiff should cause said apparatus described in said letters patent to be placed in the brewery of said defendants, for the use of said defendants; that said defendants agreed to pay for the use of said apparatus the sum of three cents, as a royalty, for each barrel of beer manufactured by them.” This averment is followed by the statement that the apparatus was placed in the defendant’s brewery on or about the 26th day of June, 1883, and that the defendants used the same until the 26th day of July, 1884, and during that period manufactured 14,396 barrels of beer; and that the defendants are indebted to it for such use in the sum of $431.80, for which amount judgment was demanded. The defendants denied that the plaintiff was the owner of the letters patent set forth in the complaint, and their third answer relates to the agreement, and is as follows: “These defendants deny that on or about the 4th day of June, 1883, or any other time, these defendants entered into an agreement with the said plaintiff, whereby it was agreed that said plaintiff should cause said apparatus described in said letters patent to be placed in the brewery of said defendants, for the use of said defendants, and that they agreed to pay for the use of said apparatus the sum of three cents, as a royalty, for each barrel of beer manufactured by them; and these defendants deny that on or about the 26th day' of June, 1883, that said plaintiff, pursuant to said agreement, caused said apparatus to be placed in defendant’s brewery; and they deny that these defendants did thereafter until the 26th day of July, 1884, make use of said apparatus in the manufacture of beer; and they deny that during the time in which said apparatus was used by defendants said defendants manufactured fourteen thousand three hundred and ninety-six and three-twelfths barrels of beer; and they deny that there is now due to plaintiff, as royalty, the sum of four hundred and thirty-one 80-100 dollars, or any other sum whatever.” In their fourth answer they set up the arrangement as they claim it to have been, and state that the plaintiff desired to place the improved apparatus for the manufacture of beer in their brewery, for the purpose of allowing the defendants to try and test its utility; and that it was understood and agreed that no .charge should be made for such use; and that they permitted the plaintiff to place the same in their brewery upon those conditions; and that they did use ft for a time, and, being satisfied that the apparatus did not possess any merits, it was removed by the plaintiff at their request. On the trial the plaintiff gave evidence tending to prove the agreement as set out in the complaint. After the defendants took the case, they offered evidence in support of their contention as to the nature'and effect" of the agreement, which was objected ¡to by the plaintiff upon the ground that the answer had not put in issue the contract as set out in the complaint, and thereupon the defendants moved for leave to amend their answer so as to put in issue by denial the allegation in plaintiff’s complaint in regard to the alleged agreement between the plaintiff and defendants, and to meet the proofs offered on the part of plaintiff, which motion was then granted, and the plaintiff excepted. The complaint was dismissed, and plaintiff appeals.
    Argued before Barker, P. J., and Haight, Bradley, and Dwight, JJ.
    
      J". & Q. Van Voorhis, for appellant. Albert H. Harris, for respondents.
   Barker, P. J., (after stating the facts as above.)

The appellant insists that the referee had no power to allow the defendants to amend their answer on the trial in the respect granted, and that the exception to such allowance was well taken. The argument offered in support of the plaintiff’s position is that the original answer upon which the parties went to trial before the ref■eree, did not in legal effect deny the contract as set out in the complaint, and that the making of the same was a fact admitted. If the answer is susceptible of such construction, then by the amendment a new issue was introduced, which the referee had no power to allow. A denial of the cause of action ■sued upon by amendment, on the trial, does substantially change the defense. When the plaintiff’s alleged cause of action is not put in issue by the answer, no greater surprise could occur to him after the trial had commenced than to require him, by an amendment of the answer, to make proof of his cause of action. Code Civil Proc. §§ 539, 723; Price v. Brown, 98 N. Y. 388. We are inclined to the opinion that the original answer did, by fair construction ■of its language, put in issue the averment of the complaint that the defendants made and entered into the contract as stated therein. It is a fundamental rule of pleading, which prevails now, as it did before the adoption of the Code, that if a party wishes to traverse a fact alleged in the pleading which he is called upon to answer, he must deny the same in plain and unambiguous terms. If by the form of the denial used it is left in doubt whether the party intends to dispute the fact charged, or only the circumstances “attending the fact against him, as, for instance, the time and place of making a contract set up in the pleadings, and not the making of a contract of the form and substance of the one alleged, it is a bad or defective answer, for the reason that, in legal phrase, it is pregnant with the admission that the fact alleged is in part true. In the case before us the complaint sets forth, in a separate paragraph, the terms of the alleged agreement. The defendants’ answer, in terms, denies that they entered into an agreement with the plaintiff whereby it was agreed that the said plaintiff should cause said apparatus described in said letters patent to be placed in the brewery of said defendants for the use •of said defendants, and that they agreed to pay for the use of said apparatus the sum of three cents, as royalty, for each barrel of beer manufactured by them, which is, in effect, a denial of the terms of the contract as set forth in the complaint. If the words of the complaint setting forth the alleged contract had been copied in the answer, and it then denied that the defendants made such an agreement, it would have constituted a complete denial of the plaintiff’s alleged cause of action, and we think that such was the effect of the form of the answer adopted. The denial is as broad as the averment. The answer is, in-its form and effect, similar to the old pleading of general issue, where, in an action of debt, the plea w'as that the defendant does not owe the sum of money demanded, or any part thereof, in manner and form, as the said plaintiff hath above complained against him. Ambiguity in pleading always constitutes a fault, and, when that is the only objection to be urged against the pleading, then the party affected thereby, and who is in doubt as to its meaning, may require by a motion that the pleading be made more certain and definite, as provided by the Code and the rules and practice of the court. In section 546 it is provided, where one or more denials or allegations contained in a pleading are so indefinite or uncertain that the precise meaning or application thereof is not apparent, the court may require the pleading to be made definite and certain by amendment. That the answer does deny that the defendants did make a contract containing all the terms and provisions as set out in the complaint, is admitted by the learned counsel for the appellant; for his argument is that the answer constitutes a nega. five pregnant, which is an admission by the pleader that the averment to which the answer related is in part true, or is not all false. As it is manifest that the defendants intended to deny some of the averments relative to the making of the contract, we think the plaintiff’s proper remedy was by motion to have the answer made more definite and certain; and, as that mode of relief was not resorted to, we think the referee had the power to allow the amendment, under the provisions of sections 539 and 723. As there was a manifest intention on the part of the defendants to deny the making of the agreement as set forth in the complaint, we are of the opinion that by allowing the answer to be amended no new defense was interposed thereby.

After a perusal of the evidence, we see no reason for interfering with the referee’s conclusions as to what were the terms of the agreement under which the plaintiff placed its apparatus in the defendants’ brewery for their use. Evidence was given on both sides of the dispute, and none of the witnesses who testified relative to the terms of the contract were disinterested. The referee was better qualified than we are to decide which was most entitled to credit. Judgment affirmed. All concur.  