
    James D. Conklin, Respondent, v. John H. Woodbury Dermatological Institute, Appellant.
    
      A defendant is not bound to elect between inconsistent defenses, nor to offer .evidence ' which the court has declined to admit.
    
    The complaint in an action set up a contract which provided that the plaintiff’s assignor was employed by the defendant, and that if the defendant should . discharge the plaintiff’s assignor without assigning a good reason therefor it would repay him $1,000 which he had paid to the defendant under the contract; but that should the defendant discharge him because of his failure to comply with the terms of his contract, the. defendant should not be required to pay him any sum whatever. The complaint also alleged that the plaintiff’s .assignor had performed all the conditions of the contract, and that the defendant had discharged him without assigning a good reason therefor, and it demanded as relief the sum of $1,000, with interest from the day of the discharge.
    The answer denied that the plaintiff’s assignor had fully performed all the condi- ■ tians of the contract on his part, and that the defendant had discharged him without assigning a good reason therefor, and, for a further and separate defense, it alleged that the plaintiff’s assignor had violated the contract in certain specified respects, and had left the employ of the defendant without being discharged.
    
      Meld, that it was error, on the ground that two inconsistent defenses had been pleaded, one that the defendant had a sufficient reason for discharging the plaintiff’s assignor, and the other that the latter left his employment and was not discharged, to require the defendant to elect on which defense it would rely, and to refuse to allow the defendant to give evidence in support of its defense that the plaintiff’s assignor had not performed the conditions of his contract, and that, therefore, it had a sufficient reason for discharging him, as well as evidence in support of its defense that the plaintiff’s assignor left his employment and was not discharged;
    That, under section 507 of the Code of Civil Procedure, a defendant is entitled to set up as many defenses as he has, although the defenses may be inconsistent with each other;
    That the fact that the defendant offered no evidence bearing upon the defense of non-performance by the plaintiff’s assignor of the conditions of the employment did not prevent it from raising the question on appeal, as it was not called upon to antagonize the court by further insisting upon its right to establish such defense after the court had ruled it out.
    Appeal by the defendant, the J ohn H. Woodbury Dermatological Institute, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the lYtli day of October, 1898, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 25th day •of October, 1898, denying the defendant’s motion for a new trial made upon the minutes.
    
      Benjamin Patterson, for the appellant.
    
      Henry B. Twombly, for the respondent.
   Rumsey, J.:

The complaint alleged that on the 12th of December, 1894, one Wehrly, the plaintiff’s assignor, made with the defendant a contract to enter into its employment and work for it in the city of St. Louis; that Wehrly paid to the defendant $1,000, and agreed to conduct the business of the defendant in that city, receiving a certain percentage of the profits; to keep true and faithful accounts of the money received and expended; to obey all orders of the defendant; to give his whole time and attention to the performance of the •duties required of him at. such times as might be necessary to conduct the business of the office. It was further agreed that if the defendant desired to dispense with the services of the plaintiff’s assignor, without assigning a good reason therefor, it should repay him the $1,000; but should the defendant be compelled to dispense with such services because of his failure to keep the terms of his agreement, then the defendant should not be required to pay Wehrly any money whatever.

The complaint alleged the payment of the $1,000; that the plaintiff’s assignor performed all his duties and all the conditions of the contract, but that on the lltli of February 1896, the defendant illegally, wrongfully and without good reason discharged Wehrly and dispensed with his services, without assigning a good reason therefor. The plaintiff further alleged the demand of the $1,000 and the refusal to pay. The complaint further alleged that the contract was assigned by Wehrly to the plaintiff, and he seeks to recover the $1,000 with interest from the day of the discharge. The answer denied that Wehrlyuwell and faithfully performed all the duties and matters pertaining to the proper conduct and business of the defendant, and in all other respects duly performed all other conditions of the contract on his part. It denied the allegations that the defendant illegally, wrongfully and without good reason discharged Wehrly without assigning a good reason therefor. As a further and separate defense it set up affirmatively that Wehrly violated his agreement in many respects which are more particularly specified in that defense, but not necessary here to refer to.

For still another separate defense, it was alleged that the plaintiff’s assignor left the employ of the defendant without being discharged, and refused longer to continue in that employ. At the trial the plaintiff gave considerable evidence tending to show that Wehrly performed all the conditions of the contract on his part to be done. This evidence was given without any objection and without any suggestion that it was not competent under the complaint.

After the evidence of the plaintiff had closed, and the defendant had opened his case, the court called to the attention of the defendant’s counsel the fact that he had pleaded two inconsistent defenses, one that it had a sufficient reason for the discharging of the plaintiff’s assignor, and the other that it did not discharge him at all.

It is claimed by the defendant that the defenses were not inconsistent, but the court held that they were, and limited the defendant in its defense to evidence that the plaintiff’s assignor himself severed the connection between himself and the company, because, as the court said, if the defendant did not discharge him then all reasons for discharging him were immaterial. To this ruling the counsel for the defendant excepted.

In charging the jury, the court said to them that the defendant elected to stand upon the defense that the plaintiff’s assignor voluntarily resigned his office, and the question submitted was simply whether he was discharged by the defendant, or whether he voluntarily resigned his employment, the court saying to the jury that, if he was discharged, he was entitled to recover the $1,000, but if he voluntarily resigned his employment, he was not entitled to recover. The counsel excepted to the statement of the court that the defendant elected to stand upon the one defense, and asked the court to charge that, if the plaintiff’s assignor failed to perform all the terms and conditions of the contract on his part, he could not recover, although the defendant discharged him, which the court refused to do, and the defendant’s counsel took an exception.

It is quite apparent that, in its answer, the defendant had alleged two defenses, either of which, if established, was a complete answer to the plaintiff’s case. If Dr. Wehrly left the service of the defendant, then, of course, he could not recover the $1,000, as the court had charged the jury. If he was discharged for a failure to keep the terms of his agreement, then, by the express terms of the contract, he was not entitled to recover the $1,000. The complaint alleged that Wehrly was discharged unlawfully, wrongfully and without good reason. This was denied by the answer, and not only was it denied, but the defendant set up affirmatively a violation of the ■ terms of the contract, which, if established, would make the discharge legal and relieve the defendant from liability to pay the money. This defense, as was conceded on the trial, was sufficiently pleaded. It is a rule of pleading established by the Code, as construed by the cases, that the defendant is entitled to set up as many defenses as he has (Code Civ. Proc. § 507), although these defenses may be inconsistent with each other. (Goodwin v.Wertheimer, 99 N. Y. 149; Societa Italiana v. Sulzer, 138 id. 468, 472,) The defendant, therefore, was entitled, as a matter of right, to prove not only that Welniy left its service, but also the facts which it had alleged in its answer tending to show that he had not performed the conditions of his contract, and that the defendant was entitled to discharge him. This last defense he was not permitted to prove, and for that error the judgment and order should be reversed.

It was claimed that the defendant offered no evidence bearing upon that question. Even had this been the case, it would still be entitled to an opportunity to try that question. When the court had ruled that, because the defenses were inconsistent, the defendant should not be permitted to insist that he had lawfully discharged Wehrly, the defendant was not called upon to antagonize the court by insisting further upon its right to establish such a defense. Not only was it at liberty to stand upon the exception which it took to the ruling, but it was the duty of its counsel, after that ruling had been unqualifiedly made, to receive it as the law of the case for the purposes of the trial, and to try the case upon the lines indicated by the court, subject, of course, to its right to insist upon an appeal that the exception was well taken, and that it had the right to present to the jury all the defenses contained in its answer. As it was deprived of that right, the judgment and order must be reversed and a new trial granted, with costs to the appellant to abide the event.

Van Brunt, P. J., Barrett, Patterson and O’Brien, JJ., concurred.

Judgment and order reversed, new trial granted, costs to appellant to abide event.  