#### Emma K. Ramsay, Respondent, *against*Reon Barnes, Appellant.

(Decided January 5th, 1891.)

In an action by the indorsee of a promissory note signed “ G-. B., per R. B., Atty.,” brought against R. B. for a balance due on the note, the complaint contained a paragraph alleging that it was agreed between plaintiff and defendant “ that the matter was not one of *G.*B., but a personal one of the defendant,” and that he owed plaintiff a specified sum, and that that was the true balance due upon said note. The only denial in the answer of these allegations referred expressly to said paragraph of the complaint, and denied the precise words of all its averments except the statement of the personal obligation of defendant, to which no reference was made. *479*Held,*that this was, in effect, an express admission of that allegation ; and that no question of the consideration for such agreement, or other question affecting its validity, could be raised.

The force of such admission was not destroyed by proof of a writing made by defendant, reciting that he had purchased the note, and that said sum was the balance due on the purchase ; such writing not being signed by defendant and not enforceable against him as an agreement.

Where defendant pleads the statute of limitations, a payment on account of the demand sued for may be proved by plaintiff, although not alleged in his complaint; he is not bound to anticipate the defense.

Testimony that certain payments were made on account of the debt sued for, is not necessarily the conclusion or opinion of the witness ; and, where given without objection or cross-examination as to the circumstances, is sufficient to take the case out of the statute of limitations.

To show that certain money paid by defendant to plaintiff was a payment on accomit of a debt due from the former to the latter, for money loaned, tak.ing it out of the operation of the statute of limitations, plaintiff testified that she asked defendant for money on account of the loan to pay her rent, and he drew a check for her ; and her brother testified that defendant afterwards told him that he had paid the amount to plaintiff on account ; but defendant testified that plaintiff made no request for a payment, but said she was in arrears for rent, and about to be dispossessed, and he gave her his check, which bore on its face the statement that it was for rent of her house. *Held,*that a finding that the payment was on account of the debt, and not a loan from defendant to plaintiff, was sustained by the evidence.

Appeal from a judgment of this court entered upon the decision of the judge on trial by the court- without a jury-

The action was brought to recover a balance of $429.94, with interest from December 15th, 1885, being the balance claimed to be due upon a certain promissory note made by defendant, as follows:

“ $550. New York, April 25th, 1876.

“ Two months after date I promise to pay to Jacob Ramsay, Jr., or order, five hundred and fifty dollars for value received, with interest at the rate of 7 per cent, per annum, having deposited with him as collateral security, with authority to sell the same at public or private sale on the nonperformance of this promise, and without notice, one bond for *480$500 of the North River & New York Steamboat Co., numbered 171.

“ Gaybert Barnes,

“ Per Reon Barnes, Atty.”

Upon trial by the court, a jury having been waived, judgment was rendered for plaintiff for $480.35, with costs. From the judgment defendant appealed.

*William B.*Sornblower, for appellant.

*Joseph M.*Williams, for respondent.

J. F. Daiy, Ch. J.

It was found by the trial judge, first: that the note in question was made and delivered by Reon Barnes for value received; second: that it was indorsed and delivered to the plaintiff by the payee for good and sufficient consideration together with the bond; and, third: that thereafter "and on of about March 14th, 1877, it was agreed between the plaintiff and defendant that the matter was not one of Gaybert Barnes, but a personal one of the defendant; and that at that date he owed the plaintiff the sum of $518.55, and that that was the true balance due upon said no’te.

, The first point of the appellant upon this appeal is that there is absolutely no evidence to support the third finding of fact, upon which alone the conclusion of law is based that plaintiff is entitled to judgment against defendant. It would seem that the appellant has overlooked the clear admission of this fact in the pleadings. The complaint alleges, “ Third: That thereafter and on or about the 14th day of March, 1877, it was agreed between the plaintiff and the -defendant that the matter was not one of Gaybert Barnes, but a personal one of the defendant, and that at that date he owed the plaintiff the sum of $518.55, and that that was the true balance then due upon said note.” The only denial in the answer of these allegations is as follows: “ Third : Denies that it was agreed between the plaintiff and the defendant on or about March 14th, 1877, that the defendant then owed the plaintiff the sum of $518.55 or that that sum was the true balance then due upon the said prom- ' issory note as is alleged in the third paragraph of the com*481plaint.” A denial so worded as to put in issue in the precise words of the allegation certain averments of the third paragraph of the complaint, and referring expressly to that paragraph which contains the whole charge or statement of the personal obligation of the defendant, and which yet avoids all reference to the latter, has all the force of an express admission of the portion which is not denied.

It was not necessary for the plaintiff to give evidence of an allegation so admitted. It is claimed, however, that by introducing a certain paper drawn up and delivered by the defendant on the 14th of March, 1877, (but not signed by him) the plaintiff, showed that there was no such transaction as alleged in the complaint. That paper recited that Reon Barnes had *purchased*the note and bond in question and that $518.55 is the true balance due upon said purchase. It was offered by plaintiff as a memorandum made by defendant showing the amount admitted to be due, and the testimony Avas that it was given as an agreement as to the amount due. It Avas not an agreement; it was not enforceable against the defendant; it was a mere statement by him Avhieh cannot have the effect of destroying the force of his solemn admission in the pleadings as to the admission and agreement that the obligation to which he affixed the name of Gaybert Barnes as principal and his own as attorney was in fact his OAvn contract.

It is argued, however, that there was no consideration for any such agreement. As the agreement was admitted by the pleading, neither the question of consideration nor any other question affecting its validity could be raised. Besides, no such objection was made at the trial where it might have been obviated by proof. The same consideration disposes of the suggestion that, the note being signed on behalf of Gaybert Barnes as principal, it could not be shown by parol to be the engagement of a third party *(Briggs*v. Partridge, 64 N. Y. 363). But even if the agreement had not been admitted in the pleadings, and even if the objection had been taken at the trial, there is no force in this suggestion. For this is the case of a note signed by the party sought to be *482charged, though he signed it apparently as agent of another. A party may sign a note by any name he pleases and if he intend to bind himself by it he is liable upon it *(De Witt*v. *Walton,*9 N. Y. 571; *Brown*v. *Butchers & D. Bank,*6 Hill 443). So, in this case, while Reon Barnes signs the name of Gaybert Barnes with his own name as “ Atty,” he admits and agrees that it is his obligation, and therefore he is bound by it.

The remaining question upon this appeal arises under the statute of limitations which was pleaded as a defense, the note in question having matured on June 28th, 1876, and the action having been commenced on December 26th, 1886. The plaintiff alleged in her complaint that the defendant made two payments of $20 each on account of said note in or about March, 1878, and that she received $75 as a dividend upon the bond about January 1st, 1880, and that on December 15th, 1885, the defendant paid her $266.66 ; leaving the balance sued for of $429.94. The answer denies the making of any of these payments on account of the note, and denies any knowledge of the payment of any dividend upon the bond, and counterclaims the sum of $266.66 which he alleges he lent to the plaintiff on December 15th, 1885. All of these payments were proved, and in addition a payment of" $41 in 1883. Evidence of this last amount was objected to because not alleged in the complaint. But a plaintiff is not bound to anticipate a plea of the statute by setting forth in his complaint the payments that he intends to rely upon to take the case out of its operation. Further objection is made that the circumstances under which the payment was made are not shown, and that proof of a mere payment of a particular sum is not evidence of an acknowledgment that more was due. It is sufficient answer that the witness was permitted without objection to state the several payments in answer to the question, “ Has anything been paid by the defendant on account of this amount due ? ” This question did not necessarily call for a conclusion nor an opinion of the witness, but for a fact. He was not cross-examined as to the circumstances of each payment, nor was objection made, that *483such circumstances were not shown. The testimony of payment was therefore competent as evidence of a part payment of an acknowledged indebtedness to the amount due.

As to the payment of $266.66 on December 15th, 1885, which plaintiff claims to have been a payment on account, and which defendant claims to have been a loan made by him to plaintiff, the testimony was conflicting, but there was ample evidence to sustain the finding. The plaintiff swore that she went to defendant and asked for money on account of the money loaned (for it appeared without contradiction that the note was originally given by defendant for a loan of money to him from the plaintiff, through her brother, the payee of the note, and that the note was taken for her benefit), that she asked for the money to pay her rent, and he drew the check for her. The witness Jacob Ramsay testified that two days after he met defendant on the treasury steps on Wall Street; that he was on the opposite side and defendant whistled to him , he went over, and defendant said, “ I saw Emma the other day and gave her $250 on account; now, Jake, I will fix up the balance of that as soon as possible.” Defendant testified that no request was made for a payment, but that plaintiff called upon him and said she was in arrears for rent and was about to be dispossessed, and he gave her his check payable to her order and bearing on its face the statement (“ for rent of No. 40 W. 38th St. for mo. of Dec.”). The check was produced.

Upon the evidence of the original loan from plaintiff to defendant of the money for which this note was given (which as I have said was not contradicted), upon the admission in the pleading of an agreement that the note was his personal obligation, upon the guarded testimony given by him upon commission, “ No recollection of ever assuming the payment of the note set out in the complaint, or of agreeing with the plaintiff that I owed her the sum of $518.55 or any sum upon sjiid note; and I think I never did,” and upon the testimony of the plaintiff and her brother as opposed to that of the defendant, there does not seem to have been *484room for any other conclusion than that arrived at by the learned trial judge upon the case before him.

The judgment should be affirmed, with costs.

Bischoee and Pryor, JJ., concurred.

Judgment affirmed, with costs.