APPEAL by the defendant, Eliza De Loynes, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Richmond on the 23d day of May, 1911, upon the verdict of a jury rendered by direction of the court after a trial at the Richmond Trial Term, and also from an order entered in said clerk's office nunc pro tunc on the 19th day of May, 1911, denying the said defendant's motion for a new trial made upon the minutes.
Howard E. White, for the appellant.
Montague Lessler [Leonard J. Obermeier and Nicholas A. Donnelly with him on the brief], for the respondent.
This is an appeal from a judgment directed by the court, and if there is evidence in support of the defendant's contentions, the court erred in not submitting the questions involved to the jury, for in such a situation the defeated party is entitled to the most favorable view which a jury might properly have taken of the evidence. The complaint alleges the death of one Josephine I. Bayaud in Denver, Col., leaving a last will and testament, which was duly admitted to probate in the city of Denver on the 6th day of January, 1908; that under the provisions of this last will and testament Charles Lange, C. Adele Perrenoud and Zelie E. Ruter were made testamentary trustees of the said Josephine I. Bayaud, deceased, and that by the provisions of said last will and testament George A. De Loynes, now deceased, was a beneficiary to the extent of one-ninth share or interest in such estate. It is further alleged that 'on
or about the 24th day of December, 1906, the said George A. De Loynes, Eliza De Loynes, his wife, Lester L. De Loynes and Estelle De Loynes, his children, executed and delivered to George T. Bayaud an Assignment in writing, a copy of which is hereto annexed,' etc., and that the said George T. Bayaud subsequently 'assigned, set over and transferred to Montague Lessler, all his right, title and interest in and to One thousand and eighty ($1,080.) dollars of the amount assigned, transferred and set over by George A. De Loynes under the assignment set forth in paragraph marked 'Second' of the complaint,' and that on or about the 17th day of January, 1908, the said George A. De Loynes executed and delivered to said Eliza De Loynes, his wife, an assignment in writing, and that all of these several assignments were 'duly served on the testamentary trustees by all the parties hereto.' It is then alleged that the plaintiff and defendants entered into a certain agreement with the testamentary trustees by which a trust fund was created for the purpose of taking the assigned amount out of the hands of the testamentary trustees and placing it in the hands of a trustee, to await the determination of its legal ownership, and the necessary facts are alleged to show that the fund is so held, with a demand for judgment in favor of the plaintiff.
The defendant Eliza De Loynes 'admits that on or about the date specified in paragraph 'Second' of said amended complaint, the instrument therein referred to was delivered to the plaintiff, but shows and alleges that said delivery was made upon condition that the plaintiff would perform certain services, and as collateral to secure the repayment of such expenses as the plaintiff might incur in connection therewith, and except as hereinbefore specifically admitted or denied, the defendant Eliza De Loynes denies each and every allegation of said paragraph 'Second' of the amended complaint.' Leaving out of consideration the fact that the plaintiff in this action is the assignee of the party with whom the contract mentioned in paragraph 2d of the complaint was made, and that this assignment was not delivered to the plaintiff, nor upon the condition that the plaintiff would perform any services whatever, and assuming that the allegations of the answer relate to George T. Bayaud, to whom the assignment was made, let us consider
how far this answer denies any of the allegations of the complaint in reference to this contract of assignment, for upon this contract hinge the merits of this case. The allegation of the complaint is that 'on or about the 24th day of December, 1906, the said George A. De Loynes,' with his wife and children, 'executed and delivered to George T. Bayaud an Assignment in writing, a copy of which is hereto annexed,' and the answer admits 'that on or about the date specified,' the 'instrument therein referred to was delivered to the plaintiff,' and denies each and every other allegation of this paragraph of the complaint. The 'instrument therein referred to' was in writing, and was set forth in the complaint, showing due execution, and as the allegation of execution is the only one not directly admitted, this is the only allegation which is in any sense denied, and it is difficult to understand how a specific instrument, in due form, can be admitted to have been delivered without incidentally admitting the execution of the same. 'The execution of a document means completing it in accordance with the various formalities required by law, such as signing, sealing, stamping, and acknowledging it, and having it properly attested. This term also generally includes the delivery of the document.' (11 Am. & Eng. Ency. of Law [2d ed.], 584; Thorp v. Keokuk Coal Co., 48 N.Y. 253.) In the present instance the assignment was not only signed by the various parties, but it was under seal and acknowledged with due formality, and the admission of the answer is that the 'instrument therein referred to,' and which is set out in detail as a part of the complaint, was 'delivered to the plaintiff' at the time alleged. It does not seem to us that it can be fairly contended that the pleadings presented any issue upon the question of the execution and delivery of the assignment set forth in the complaint, and the allegation of the answer as to the alleged condition of its delivery has no proper place outside of an affirmative defense.
We have been thus particular to point out the condition of the pleadings upon this point, because it is urged that the learned court at Trial Term erred in permitting the assignment to be placed in evidence without evidence as to its execution. The question came up when the plaintiff offered in evidence
'the assignment from George A. De Loynes and others to George T. Bayaud.' Counsel for defendants objected 'to the offer without the presence of Mr. Bayaud upon the stand. Of course, in the case of a promissory note that is the usual method of procedure, but here is an assignment, and, while we admit substantially the making of a similar instrument, I think we are entitled to have the date fixed and the actual assignment identified by Mr. Bayaud, and unless Mr. Bayaud is placed upon the stand I must press my objection as incompetent, irrelevant and immaterial.' At this point counsel for plaintiff announced that he merely intended to introduce his documentary evidence in behalf of the plaintiff, and upon the court asking if the instrument was acknowledged plaintiff's counsel replied that it was. Thereupon the court said: 'If it was not acknowledged I would not admit it; but, being acknowledged, I will admit it.' Defendant's counsel then took an exception, without in any manner suggesting, as is now done, that the acknowledgment was taken before a notary public of the State of New Jersey, and that there was no proof that a notary in that State is authorized to take acknowledgments. It will be ...