
    Harry R. Elliott et al., Resp’t., v. The New York Endowment Co., App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 1, 1893.)
    
    Contract—Subscbiftion.
    Where, in an action against a company for goods sold to, and labor performed for, the company, a counterclaim is interposed by reason of a subscription on the part of the plaintiffs to such company’s stock, that contract to subscribe can be enfored only to its terms.
    Appeal from a judgment entered upon a verdict made by the direction of the court upon a trial at the circuit.
    Cantor, Linson & Van &haiclc, for app’lt; John Andrews, for resp’t.
   Dykman, J.

This is an appeal from a judgment entered upon a verdict made by direction of the court upon a trial at the circuit.

The complaint of the plaintiffs stated : First. That they were co-partners in business. Second. That the defendant is a domestic corporation. Third. That between the first day of January and the first day of September, 1892, the plaintiffs sold and delivered to the defendants goods, consisting of stationary, and did printing and lithographing work of the value of $1,665.75. Fourth. That the defendants had paid $900 on account of the claim, leaving a balance of $764.75, for which the plaintiffs demanded judgment. The answer of the defendant stated: First. That it had no knowledge or information of the facts stated in paragraphs 1, 3 and 4 of the complaint. Then set up a counterclaim against plaintiffs upon an allegation that they had subscribed the sum of $1,000, to the stock of the defendant, and paid the sum of $100 on account thereof, and demanded judgment in its favor. There was a reply in which the plaintiffs denied that they subscribed the sum of $1,000 for the stock of the defendant, or that they ever received any notice of assessment, but admitted that the defendant requested the plaintiffs to take a $1,000 worth of stock of the defendant upon the following terms : That the plaintiff should pay ten per cent of the amount of stock in cash and the balance of said stock to be paid for by a deduction of fifteen per cent, from the amount to be paid by the defendant to plaintiff each month for goods to be sold and delivered, work and labor to be performed by the plaintiffs, that they paid $100, and that the defendant failed to perform its agreement.

Afterward the defendant withdrew its denial to the third paragraph of the complaint, which alleged the performance of the work and the sale of the property. Upon the trial a witness was called by the plaintiffs who proved the amount of interest due upon the demand,and upon cross-examination was handed a paper, the signature to which was proved by him to be one of the plaintiffs. Thereupon the plaintiff rested, and the counsel for the defendant asked leave of the court to amend his answer. Counsel for the plaintiff objected to -the amendment because the application should have been made to the special term for the defense related to matters which have arisen since the commencement of the action, because in that case it would be necessary to serve a supplemental pleading setting up such new matter. Thereupon the judge denied the motion to amend. The counsel for the defendant then read the deposition of a witness taken upon commission, which showed among other things a letter from the plaintiffs as follows:

“ In reference to our conversation of this p. m. we find the best we are able to do will be to subscribe now for $1,000 of stock with the privilege of $2,000, ten per cent down and the balance to be paid as follows: Fifteen per cent, to be deducted from our account with you each month and credited toward the payment of balance. Trusting this will be satisfactory to you, we are,

'Yours truly,

“H. E. Elliott & Co.”

At the close of the testimony the counsel for the plaintiff requested the court to direct a verdict in their favor, and the court stated : “FTo doubt it is true that stock can be paid for so as to make it fully paid stock by any arrangement to pay for it in this way, but it seems to me equally plain that in a litigation between a company and the plaintiff who has sold and delivered goods to the company, and performed labor for the company, where a counterclaim is interposed by reason of a subscription on the part of the plaintiffs to that company’s stock that contract to subscribe can be enforced only according to its terms. Now the contract subscribed here was made in writing, that is to say, under the rules of evidence as I understand them and feel bound to apply them in this case, in order to get at what the real transaction between the company and these plaintiffs was, we must look at the letter they wrote, and at the subscription written as I must assume, at this stage of the case in the absence of any further evidence, with the authority of these plaintiffs.

Taking the letter and the subscription together it amounts simply to this, that they agreed to subscribe for this stock and to pay all. that they did not pay at once by deducting fifteen per cent, from their monthly accounts. If you, the defendant, had proved here, what the monthly accounts were, and had asked a deduction of fifteen per cent, from each of these monthly accounts on the part -of your counterclaim as a set off or deduction, I think you would be entitled to have it, but in the absence of any proof as to what the monthly accounts were, and what the fifteen per cent, was, I think the plaintiffs are entitled to a verdict for the entire amount claimed, and I direct a verdict accordingly for $830.62, to which there was an exception.

We concur in the views so stated, and ffind no difficulty in confirming the judgment, with costs.  