Opinion
June Term, 1868
Colvin Bingham, for the appellant.
S. Hand, for the respondent.
The only question raised by the demurrer to the complaint in this action is, whether the averment that the defendent has received from Weed and others, under and by virtue of their agreement with the defendant herein before set forth, the sums of money specified "as paid for and on account of his right, title and interest, of, in and to said contract herein before set forth," states a fact which entitles the plaintiff to recover from the defendant.
The contract referred to entitled the defendant to receive from Weed and others six per centum of certain amounts to accrue from the publication of the Colonial History. That was his right, title and interest in and by force of that contract. If the allegation in question, when read in connection with the other parts of the complaint, and reasonably interpreted, means that the defendant has received the moneys on account of and for that right, title and interest, then the allegation is sufficient. In my opinion it may be reasonably so read. Indeed, I think that no one can read the complaint as an entire statement without so understanding it.
The expression, "his right, title and interest," is twice before in paragraphs immediately preceding, used in exactly the sense of the whole interest accruing to the defendant by virtue of that contract. In the clause immediately preceding, it is stated that the plaintiff is, by assignment from Davis, empowered to sue for and collect all moneys due to Davis, by virtue of said contract, and of the assignment to Davis by the defendant, of one-half of his right, title and interest, of, in and to said contract; and then avers that the defendant has received, from Weed and others, $500 and other specified sums, as and for and on account of his right, title and interest, of, in and to said contract herein before set forth.
It is an intelligible, and I think the most natural construction to regard the words "herein before set forth," as referring to "his right, title and interest" before mentioned, — that is to say, his right, title and interest under the contract with Weed and others, whereof one-half had been assigned by the defendant to Davis, and by him to the plaintiff.
The language is clearly susceptible of this interpretation, and, if so, that interpretation should be given in preference to one which leads to the absurdity of construing the complaint as an averment, that the defendant has received moneys, exclusively his own, in which the plantiff has no interest.
If the allegation admits of the latter interpretation, it may be said to be ambiguous, and that is all.
It is not true that, under the Code, if there be uncertainty in respect to the nature of the charge, it is to be construed strictly against the pleader.
By section 159, in the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed with a view to substantial justice.
And by section 160, when the allegations of a pleading are so indefinite or uncertain that the precise nature of the charge is not apparent, the court may require the pleading to be made definite and certain by amendment.
I think the demurrer was properly overruled, and that the judgment should be affirmed.
This appears to me to be a very simple case, and was properly disposed of at the Special Term. The demurrer is founded on a misconception or perversion of the allegations of the complaint. When fairly construed, the complaint contains no averment that the defendant had received certain sums of money on account of his interest in the contract as distinguished and separate from the interest of the plaintiff therein, and thereupon setting up a claim to the half to which defendant was entitled, and not his own. This would be to make the claim presented by the complaint not only unreasonable, but absurd, and we are not to give a construction to language susceptible of another and a reasonable interpretation, which could lead to such a result. When, therefore, the complaint alleges, that the defendant received certain sums of money paid on account of his right, title and interest in and to the contract therein set forth, it manifestly refers to the whole contract, and not to a partial interest therein, and this construction is affirmed, and made entirely clear by the subsequent averment, that the plaintiff was entitled to have and receive from the defendant one-half of the sums so received by him.
The statement of the case is this: The plaintiff owned one-half of the defendant's interest in the contract, which he had acquired by assignment from Davis, to whom the defendant had assigned one-half of his interest. On account of defendant's interest, as distinguished from that of the other parties to the contract, Weed and others, defendant had received certain sums of money, all of which, by the way, had been received before he assigned to Davis; and the one-half of these moneys, which is precisely the contract the defendant had assigned to Davis, and Davis to the plaintiff, the defendant claims to recover in the complaint.
There is no element of partnership here, in such a sense as requires an accounting and balance to be struck, or an express agreement to pay. The defendant stands precisely in the position of one of two joint holders of a specific demand or chose in action, who receives money in the interest and for the benefit of both, and becomes liable by a promise implied by law to pay over the share to which the other is entitled.
The judgment should be affirmed, and be absolute without allowing to defendant the privilege which was accorded to him at the Special Term, to answer upon payment of costs.
Judgment affirmed.