
    Isaac D. Garfield, Resp’t, v. Charles C. Blair, App’lt.
    
      (Supreme Court, General Term, Fourth Department
    
    
      Filed May 23, 1890.)
    
    1. Evidence — Burden of proof.
    In an action for money had and received the defendant alleged an agreement with plaintiff, by which if defendant would refuse to pay a certain note plaintiff would furnish information which would defeat recovery thereon, and if collection thereon was made defendant should be entitled to half of the money which came into his hands and for which this suit was brought. It was undisputed that this money was left with defendant for the plaintiff. Held, that the burden of establishing the affirmative defense rested upon defendant.
    2. Verdict — Mistrial.
    The court submitted to the jury three questions, viz.: Whether the parties made an agreement as to allowing the note to go to protest and to litigate as sworn to by defendant: if so, whether the money in suit was delivered to defendant in- pursuance of said agreement and to carry it out* and whether the arrangement testified to hy plaintiff in relation to allowing the note to go to protest and he sued was entered into. The jury answered the first two questions in the negative and did not answer the third. Held, that the failure to answer the third question did not constitute a mistrial, as the answers to the first two disposed of the defense and entitled plaintiff to a verdict.
    Appeal from a judgment entered in Onondaga county July 23, 1889, for $1,760.99 damages and costs, and from an order denying a motion for a new trial made on the minutes of the trial judge.
    The action was to recover the sum of $1,270.21 with interest from May 29, 1886, for money belonging to the plaintiff, which came into the defendant’s hands.
    The defense was that there was an agreement between the parties that if the defendant would refuse to pay a note held against him for $4,000, which had been given in settlement of certain actions in which the plaintiff was attorney for the parties who had sued the defendant, the plaintiff would furnish information which would defeat a recovery thereon, but in case the note was collected of the defendant, he should be entitled to $750 of the money which came into his hands, and which belonged to the plaintiff for services performed by him as attorney for the other parties to such actions.
    The evidence upon the part of the plaintiff showed that the defendant received the sum of $1,500 for the plaintiff, and that no part had been paid, except that it was agreed between the parties that the sum of $229.78, which the plaintiff was then owing the defendant’s firm, should be deducted therefrom, leaving due ■the plaintiff the sum of $1,270.21.
    The defendant’s evidence tended to show that the plaintiff promised to give the defendant one-half of his interest in said $1,500 if he would decline to pay the note, and one-half of whatever was saved outside, and that the plaintiff stated to the defendant that he had a perfect defense to the note, and he thought that the defendant would not have to pay it
    The plaintiff was at this time the attorney for other parties to the actions included in the settlement, and the relation of attorney and client existed between the plaintiff and the real parties interested in the debt for which such note was given.
    The evidence of the defendant as to such agreement was disputed by the plaintiff.
    The court charged the jury, in substance, that if the agreement between the parties was as testified to by the defendant, and the check in question was delivered to him in pursuance of such agreement, the plaintiff could not recover, as the contract was immoral, against public policy, and could not be enforced. To this portion of the charge the defendant excepted. He requested the court to charge that -the agreement was valid as to him, which was refused and an exception was taken. The court also charged that the" burden of establishing the defense set up in the answer was upon the defendant, and the defendant duly excepted.
    The jury was not only directed to find a general verdict in the case, but there were also submitted to be answered by it three ■questions, which questions, answers and verdict were as follows: “ The jury rendered the following verdict: To the first interrogatory : ¡Did the plaintiff Garfield and the defendant Blair enter into an agreement in relation to allowing the $4,000 note made by Blair and given to Daniel Gates to go to protest and to litigate its payment as sworn to by Charles C. Blair? They answer, ‘¡No.’ To the second interrogatory: If the jury find the agreement was made as sworn, to by Blair, was the $1,500 check delivered by Mr. Brown to defendant Blair so delivered by Garfield’s direction .and in pursuance of such agreement and to carry same out? They .answer, ‘¡No.’ To the third interrogatory: Was the arrangement sworn to by the witness Garfield, in relation to defendant Blair allowing the $4,000 note to go to protest, and to be sued, entered into as testified by them ? And the jury further say they find for the plaintiff in the sum of $1,331.37.”
    
      Wm. G. Tracy, for resp’t; Louis Marshall, for app’lt.
   Martin, J.

We find nothing in the defendant’s exceptions to the charge which would justify a reversal of the judgment appealed from. The court in effect charged that if the defense set up in the answer was established, the plaintiff could not recover. This was as favorable to the defendant as he could properly ask. That the charge was more favorable to him than he asked or was ■entitled to is not a ground for reversal. Besides, the jury have expressly found that the agreement set forth in the answer was not made, and hence, if the charge as to the legal effect of such an agreement was erroneous, the defendant could not have been injured by it.

The court properly charged that the burden of establishing the affirmative defense set up by him was upon the defendant. The undisputed proof was that the $1,500 check in question was to be left with the defendant for the plaintiff. Such were the directions of the plaintiff to the witness Brown, who received it for him, and it was in pursuance of such directions that it was received by the defendant, as is shown by his receipt given to Brown. Under these circumstances the burden of establishing the defense relied upon was to be borne by the defendant.

¡N"or do we think that the appellant’s contention, that the failure of the jury to answer the third question submitted constituted such a mistrial as requires a reversal of the judgment, can be sustained. It is quite manifest that if the defendant failed to ■establish his defense, the plaintiff was entitled to the recovery .awarded him. Therefore, when the jury answered the first two questions in the negative, it was a complete determination by it that the defense was not sustained, and that the plaintiff was entitled to the general verdict rendered. The validity of the verdict in this case is fully sustained by the doctrine of the case of Murray v. N. Y. L. Ins. Co., 30 Hun, 428; 96 N. Y., 614, and the same distinction exists between the case at bar and the case of Ebersole v. N. C. R. Co., 23 Hun, 114, as is there pointed out. Moreover, there was no exception to the form of the verdict nor objection to its entry.

There was a conflict in the evidence upon the questions raised by the defendant’s answer. They were fairly submitted to the jury, and it found for the plaintiff. There was no such preponderance of evidence in favor of the defendant as requires or would justify us in disturbing the judgment. We think the judgment should be affirmed.

Judgment and order affirmed, with costs.

Hardin P. J., and Merwin, J., concur.  