Olcott v. . Carroll

39 N.Y. 436, 7 Trans. App. 164

• Court: New York Court of Appeals
• Decided: June 5, 1868
• Status: Published

Opinions

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.