
    EBEN GOODWIN, survivor of EBEN GOODWIN and WILLIAM H. GOODWIN, Plaintiff, v. DAVID HIRSCH, Defendant.
    I. Examination of parties, &c., under section 399 of the code.
    1. Conversations by a defendant with two partners, one of whom has died, which conversations resulted in a contract, the basis of an action on a defense.
    
      a. What does not authorise the defendant to testify to the conversation between him and the deceased.
    
    1. The fact that the surviving partner, being plaintiff, has testified to a conversation with the defendant, on the subject of the contract, does not authorize the defendant to testify to conversations between him and the deceased partner on that subject.*
    But,
    if the plaintiff undertakes to testify as to what occurred between the defendant and the deceased partner, and the evidence thus given has the force of testimony, the door is opened to the defendant to testify on the same subject,—Semble, even if such evidence of the plaintiff has not the force of testimony, yet if the case was tried before a jury, a ruling refusing defendant leave to testify as to what took place between him and the deceased partner, would be a material error.
    
    But,
    when the case is disposed by a court, in whose mind such evidence had no weight, such refusal to permit clefend ant. to testify, will not constitute material error, for thp case will be treated as if the plaintiff had not given-the evidence in question.
    
    
      * The question as to whether, when a plaintiff being a surviving partner, testifies to a communication between himself and the defendant, which in itself contains such a reference to what was said or done between the defendant and the deceased partner as that a knowledge thereof, would be necessary to an understanding of the communication between the plaintiff and defendant, the defendant can testify as to what took place between him and the deceased partner, although adverted to in the opinion, is not passed on, but left open for discussion and decision when the case arises.
    
      n. ADMISSIONS.—PLEADING.
    1. Denies.—The use of this word in an answer does not necessarily constitute a denial.
    
    Instance.—To a complaint averring a salo and delivery, the-defendant answered: “First. Denies that plaintiff sold and delivered .... except on conditions hereinafter set forth. Second. And for a further defense, &c.” The answer nowhere alleged a sale on condition, but alleged.certain representations made as an inducement to purchase, and a. . guarantee.
    Held,
    no denial of the averment of the complaint, and that, consequen tly, the cause of action th erein set forth was admitted.
    
    HI. TRIAL. -AFFIRMATIVE OF ISSUE.
    ■ 1. On WHOM IT RESTS IN A peculiar case.
    1. In the instance above put, the affirmative is on the defendant-to sustain his allegations of representations and guaranty.
    2. Effect of plaintiff in such case assuming the affirmative. AND FAILING to ESTABLISH HIS CASE BY PROOF.
    1. It does nob pi-event his taking on appeal, the ground that his cause of action was admitted Try the pleading, for the purpose of sustaining a judgment in his favor in the court below.
    IV. APPEAL.
    1. Exclusion of testimony.
    1. Mon-offer to prove facts, proof of which is necessary to render-the evidence offered material and competent; effect of on appeal, a. The ruling excluding the testimony will not be sustained' by reason of such non-offer.
    1. Where the ruling was in substance that the proposed evidence could not be given, even if the other facts (of which no proof was offered) existed. Or,
    2. When no question was, or was intended to be raised,, as to the existence of such other facts, or when they were either conceded or not disputed.
    V. AGENT.
    1. Evidence of agency.
    
      a. What sufficient to establish so that his acts, statements and. declarations made, or communicated to one who, on the faith thereof, enters into a contract, will bind the other party to the contract.
    
    
      1. Evidence that the party claimed to be the principal, during the preliminaries to a contract for the sale and purchase of certain machines, said to the person who subsequently entered into the contract on the faith of the statements, &c., of the one who was claimed to be agent, “ My brother and Mr. A. have the entire control over this machine business, and whatever arrangement they may make, I shall be satisfied and content with.”
    Held,
    sufficient to establish the agency of A. for above purposes.
    2. Statements and declabations op agent.
    1. When not, and when, binding on prinoipal.
    
    1. Mere colloquial narrations and statements which do not make part of a contract entered into, or of the inducement which led to it, are not binding on the principal.
    2. But statements made in the course of a negotiation which either form a part of the contract, or of the inducement which led to it are binding to the same extent as if made by the principal.
    
    Before Monell, Ch. J., Freedman and Sedgwick, JJ.
    
      Decided June 1, 1874.
    'Exceptions ordered to be heard at general term.
    The complaint averred that at divers times, in the years 1870 and 1871, the firm of William H. Goodwin & Company sold and delivered to the defendant, goods, wares, and machines, for which the defendant promised to pay six thousand two hundred and seventy dollars ; that he had paid on account of the same two thousand five hundred dollars; that plaintiff was sole survivor of the firm, &c.
    The answer denied “that at divers or any times, in the years 1870 or 1871, of any year or years, the said firm of William H. Goodwin & Company sold or delivered to the defendant, at his request or otherwise, goods, wares, or merchandise or machines, for which said defendant promised to pay the sum of six thousand two hundred and seventy dollars, or any other sum as alleged in said complaint, except under conditions hereinafter set forth.” ;
    For a further defense the answer averred, that in the year 1871, William H. Goodwin & Company had for sale a machine and mold for the manufacture of cigars ; that to induce the defendant to ' use said machine and mold, in his own business as a manufacturer of cigars, said firm represented to him that said machine was a “new, useful and valuable machine for the purpose of such manufacture in an unusually rapid and economical matter, surpassing in all respects, in value, usefulness and efficiency any machine o then in use or known to the public ; ” that as a further inducement, said firm “did guarantee” the defendant that said machine was in all respects a better machine than any other then in use, and that in case any improvement of any kind should be made in said machine or molds the firm would furnish to the defendant improved machines in the place of that sold to defendant, and that the firm would indemnify and save harmless the defendant against loss, damage- or expense which the defendant might incur, as a consequence of the use of said machine or from its failure in any respect in which it had been recommended by said firm ; that relying on such representations and guarantee the defendant took from the said firm a number of such machines and molds during the years 1870 and 1871,. and used them in his business; that said machines proved to be defective in many respects, and produced an article of merchandise which was unsalable, and that such machines and molds proved to, be a failure in each respect in which the same were recommended and guaranteed; that the defendant expended large sums of money .in preparing to use said machines and molds before he discovered their bad quality and failure, and that by reason of the poor quality of the cigars made by the machine in consequence of its defects, the defendant suffered great loss and damage in his business and business reputation; that by reason of the premises the defendant was damnified and suffered loss to the extent of ten thousand dollars, which sum this defendant counter claims and insists shall be allowed him in this action, and for which he may have judgment in his favor, and that said plaintiff shall not take anything whatsoever by reason of the several matters by him alleged and set forth in his said complaint.
    The action was tried by a judge and jury, the plaintiff opening. The plaintiff testitied that the firm of William H. Goodwin & Company formerly consisted ■of himself and his brother William H. Goodwin, who was then dead. He testified to a negotiation between himself personally and the defendant, for the sale of certain machines for,making cigars. He testified “the actual sale, the bargain, -was finally consummated between my brother and Mr. Hirsch for the first fifty machines. My brother accepted the offer which I had refused.” On cross-examination by defendant’s counsel, he,testified : “I have not personal knowledge ofj all I have been testifying about. I take the entry on the books as to dates. The first fifty machines he bought I refused to sell at the price he offered, but my brother sold them. I was not present at the conversation and know nothing about the transaction, except as reported to me by my brother. After my first interview with Hirsch I did not see him on the subject of purchasing the machines, until he bought the seventeen. These I sold him myself.”
    For the defense, the defendant was examined. In his testimony he gave no evidence that the plaintiff personally had made the representations or guarantees on which the answer averred the defendant took the machines. He was asked the question: “State what was done between you and Mr. William H. Goodwin on the subject of your taking these machines and molds?” And the further question : “ What, if any, agreement did you make with William H. Goodwin or Eben Goodwin in regard to the receiving at' yóur store or factory of these cigar machines and molds ?” The-questions were objected to, and excluded by the court, to1 which the defendant excepted.
    At the closé of the testimony, the defendant moved to dismiss the complaint on the ground" that the-evidence discloses that there is a party in interest' who is not joined in the pleadings. •
    ; Which motion was denied by the court,- and defendant excepted.
    The plaintiff moved the court to direct the jury to find a verdict for the plaintiff.
    The defendant requested the court to submit the disputed questions of fact to the jury.
    Which request the court then and there refused, and the defendant excepted.
    The defendant requested the .court to submit to the jury whether there had been an unconditional sale of, the seventeen machines as claimed by the plaintiff, and also whether they were worth the prices claimed.
    Which request the court then and there refused,, and the defendant excepted.
    The court then directed the jury to find a verdict for the plaintiff for four thousand two hundred -and twenty-two dollars and twenty-four cents.
    To which.direction the defendant then and there-excepted.. ; ■ ■ ■ ;
    And the. jury found a verdict accordingly."
    The court directed the exceptions to be heard in the-first instance at the general term, and in the meantime,, proceedings.on the verdict to be stayed. . - ■
    
      Arthur, Phelps. & Knevels, attorneys, and Benj 
      K. Phelps, of counsel for plaintiff, urged:—I.
    The testimony offered of conversations between Pearl and the witness Boehme were properly excluded. Conversations between two outsiders, neither of them parties to the action, could in no aspect be competent,' especially as there was no pretense that the conversation,. whatever it was, was ever communicated to either of the parties to the action. Nor is it bettered by the assumption that Pearl had an interest in the machines. It would have been equally inadmissible if it had related to conversation between plaintiff and witness. It was as to what was said before the contract or bargain was-made. It could not have influenced the defendant in making the contract, because it was not communicated to. him, and being before the bargain, it can not be used as an admission by the party in interest as to what the bargain was.
    II. As to the conversations with Wm. H. Goodwin, deceased, the questions put to defendant, were all properly excluded by the court. They were all plainly within the prohibition of the Code, § 399, as amended by Laws of 1869, and as construed by all the authorities (Clark v. Smith, 46 Barb. 30 ; Dyer v. Dyer, 48 Id. 190; Stanley v. Whitney, 47 Id. 586 ; Barrett v. Carter, 3 Lans. 68; Hier v. Grant, 47 N. Y. 278 ; Hoxie v. Allen, 38 Id. 175), the objections were well taken.
    III. The only issue raised by the pleadings was, whether the sale was an absolute one, as claimed in the complaint, or one induced upon false representations and upon a guarantee, as claimed in the answer. After the evidence was in, there having been no application to amend the answer, the issue remained exactly the same. Unless the defendant had given evidence tending to show, and upon which the jury might find the guarantee set up in the answer, there was nothing to go to the jury, and the court was bound to direct a verdict. There was no such evidence, and the direction was properly given. There was no evidence whatever of guarantee. If the case had been submitted to the jury, and they had found for the defendant, the court would have been bound to set it aside as against evidence, and therefore not to have directed a verdict for plaintiff, would have been error (Newkirk v. N. Y. & H. R. R., 38 N. Y. 158 ; Peo. exrel. Peck v. Police, 35 Barb. 651 ; Goelet v. Ross, 15 Abb. Pr. 257; Deyo v. N. Y. Central 34 N. Y. 7, and cases there cited).
    
      A. J. Perry, attorney, and with A. Oakey Hall, of counsel, for defendant, urged: I.
    The court erred in excluding defendant’s testimony about the transactions between the deceased partner, the living partner, and defendant. 1. The injustice was committed of permitting the living partner to testify about his portion of the negotiation with defendant, while the latter was not allowed to give the story touching the other portions. '2. It was not only an injustice, but an illegality, and against the latter clause of section 399 of the Code—a clause intendéd to protect such a defendant as the one at bar under all the evidence. The evidence shows that the negotiations were begun with the dead partner, and continued and perhaps consummated by the living one.
    II. The court erred in excluding the testimony offered of conversation between Pearl and Boehme. It sought to adduce the declarations of an agent of plaintiff and one interested with him in the very suit being tried.
    III. The court erred in adjudicating that the answer admitted the making of the contract. If it did, why should plaintiff prove it ? '
   By the Court.—Sedgwick, J.

The defendant was asked several questions, which in their form called for his inferences and conclusions. These were properly excluded. It is unnecessary to give particular attention to them.

He was asked other questions, which called for conversations with Wil'iam H. Goodwin, the deceased member of plaintiff’s firm. These questions were properly asked if they were not excluded by the effect of section 399 of the Code of Procedure. It is not argued that these questions would have been admissible if the plaintiff had not testified as to his interview with the defendant, or that the sale was consummated in an interview between the defendant and the deceased partner. It is argued that his testifying to these matters permitted the questions, since it is provided by the last clause of the section, that the prohibition shall not extend to any transaction or communication to which any such survivor shall be examined on his own behalf.

I think the plaintiff was at liberty to testify to that part of the negotiations which took place between him and the defendant personally, without opening the door to testimony as to what was done between the deceased partner and the defendant personally, and which closed the negotiations. The clause, saying that the prohibition shall not extend to a transaction, &c., clearly refers to such a transaction as could not be testified to by the previous terms of the section. That is a personal transaction between a witness and the deceased. In a general sense, if the deceased acted in part of a transaction, and the survivor in the rest of it, the whole is but one transaction, andif the survivor testifies to what he took part in personally, he testifies to the transaction. This is true, however, only in legal idea or judgment; for, as a matter of fact and actual occurrence, what the one did was not a part of what the other did. The section relates to testimony to facts or actual occurrences. For the purposes of the section what was done between a defendant and a sur■vivor, not being a part of what was done with the ■deceased, there is no ground for saying that the plaintiff having been allowed to give part, the defendant ■should have been allowed to give the rest.

■' But the plaintiff did testify to what took place between bis deceased partner and the defendant, in saying that the deceased partner accepted the offer of the "defendant. If this had the force of evidence, the question we are considering would, without doubt, have been allowed by the court. But it appeared that the witness was not present at any interview between the deceased and defendant. He knew of it only from what his brother said. Clearly, this had no force ■as testimony. It was not evidence against the defendant. If the case had gone to the jury, there would be room to say that they might have-been influenced by it. But the case was disposed of by the /court, in whose mind this had no weight whatever. It •must be treated as if no evidence had been given as to the interview between the defendant and the deceased, and as not permitting the defendant to testify as to that interview.

It will be observed that the case does not call for any decision as to the result of testifying to a communication between a defendant and a living partner, which in itself contained such a reference to what was -said or done between a deceased partner and the defendant, that a knowledge of the latter would be necessary to an understanding of the former.

But this brings up the consideration of whether if the court did reject this hearsay testimony, and the case was left upon an incomplete negotiation between the parties, in which the price was not fixed, .and as to which there was conflicting evidence, it ■was correct, to direct a verdict for the plaintiff, on the assumption that a complete contract appeared in the case in.behalf of plaintiff, and that there was no evidence to take the defense to the jury.

. I am of opinion that the answer admitted all that the plaintiff would have been called on to maintain if the answer made an issue with the averments of the complaint.- The first paragraph of the answer is the one alone which makes any pretense to deny any allegation of the complaint. That denies that the defendant bought any goods of the firm of William H. Goodwin & Company “except upon the conditions hereinafter set forth.” The complaint had averred nothing as to conditions, and the clause quoted is in no sense a denial of anything in the complaint. It is insensible unless it is construed, that he denies that he bought any goods, absolutely as stated in the complaint, but he admits he did, conditionally, and upon the condition afterwards stated.

. In looking to the rest of the answer, we find no allegations of a sale upon condition. Certain representations are alleged to have been made (but not fraudulently) as inducements to the defendant to purchase, and also “a guarantee” in respect of the goods is alleged. These representations and this guarantee are not inconsistent with the defendant having bought the goods and promised to pay, as alleged in the complaint. They rather imply that he did. He does not claim that the price was improperly averred in the complaint. These averments of. the answer do not annul the contract of sale, stated in the complaint, but furnish an independent defense which he should affirmatively maintain. On this state of. the issue, the plaintiff had nothing to prove, but defendant was to prove his affirmative defense. He sought to do this by the questions as to the interviews between himself and the deceased partner, which we have considered to be inadmissible. He farther gave some testimony that .he made certain statements to the plaintiff. The circa m-stances under which they were made were such, that it would be a question for the jury whether the plaintiff’s silence or replies were not virtually an admission of the truth of the statements. The defendant’s evidence as to the substance of these statements was vague and disconnected. It was so uncertain that it is best not to weigh on appeal several delicate considerations' that arise from it, especially in view of the character of another exception that we now refer to.

The defendant had testified that while the preliminaries to the sale were on foot, the plaintiff saicl to him, in reference to the price of the machines, “My brother and Mr. Pearl have the entire control of this machine business, and whatever arrangement they may make, I shall be satisfied and content with.” After this testi- , mony, á witness, who proved that he was foreman of the defendant, and in charge of his shop, was asked, “State when ,Mr. Pearl first- came to Mr. Hirsoh’s place and spoke to you about the mode and manner in ■which those machines were at your place ?” The defendant’s counsel further offered to prove, in connection with the question, after it had been objected to and excluded, that the time referred to was before the delivery of any of the machines. The court ruled that declarations of Pearl, in the presence of William H. Goodwin or Eben Goodwin, would be allowed, but those made to another party should be excluded. The defendant’s counsel then,further offered to prove by the witness, a conversation with Pearl about the contract which was to be entered hito. Exceptions were duly taken. In view of the testimony that the plaintiff had •said that his brother and Pearl had sole control of the machine business, Pearl’s oral statements in the course of the negotiation, might have been part of the oral agreement, or an inducement to the making of the contract. They were alleged to have been made to the defendant’s foreman. If communicated to the defend-. ant by the witness, and acted upon, there can be no doubt they were evidence. It not appearing that they were so communicated that it could be left to the jury to say that they were part of the contract, or of the inducement that led to it, the general objection that was taken might have been good, if the ruling of the court had not been that Pearl’s declarations to any one, except made in the presence of one of plaintiff’s firm, were not evidence. This was, in substance; a ruling that defendant should not give the evidence proposed, although the declarations were communicated to the defendant. After that, the defendant could not do otherwise, than deem that to be the law of case. Moreover, from all that passed, I think we can see that no question could have been intended to be raised by plaintiff, as to Hirsclr s foreman having told Hirsc-h, what was said. Of course, questions of that character should be excluded, if it appeared that the statements of Pearl did not- make part of the contract, or of the inducement that led to the ccntracj. Mere colloquial narrations of an agent do not bind the principal. The party offering" the evidence, must show prima facie that it is competent, unless there are in the case such circumstances, as we think there are here, that indicate that facts which would render the evidence competent, were not disputed, or were conceded for the occasion of the ruling.

For the reason last given, the exceptions must be sustained, the verdict set aside, and a new trial ordered, with costs to defendant to abide event.

Monede, Ch., J. and Freedman, J. concurred.  