#### Richard Flanagan, Respondent, *against*Peter Mitchell *et*al., Appellants.

(Decided June 2d, 1890.)

An order on defendants for the payment of a sum of money was accepted by them by writing thereon “Accepted, payable out of” a specified payment. *Held,*that this was a conditional acceptance, which became absolute when they received the payment referred to.

In an action by the payee of such order against the acceptors, the former testified that he took the order in payment for work done on a certain building, on defendants’ promise to accept it, if he would not file a lien on the building, and that in reliance thereon he forbore to file a lien. *Held,*that such forbearance was a sufficient consideration to bind defendants, although they received nothing for their acceptance.

A written contract between third parties, offered in evidence by defendants, was excluded, but one of the defendants in testifying was allowed to refer to and refresh his memory from it, and plaintiff subsequently withdrew all objections to its admission and an opportunity to introduce it in evidence was given defendants, which they refused. *Held,*that any error in originally excluding it was cured.

Appeal from a judgment of this court entered on the verdict of a jury and from an order denying a motion for a new trial.

The facts are stated in the opinion.

*Qhauncey S. Truax,*for appellants.

*Thomas O.*JSnnever, for respondent.

Larremore, Ch. J.

The plaintiff is a plasterer by trade, and prior to September 4th, 1886, was engaged in plastering a row of buildings, in Seventy-first Street, near West End Avenue, under a subcontract with Messrs. Fonner & Lowther, the builders. It is undisputed that upon said day the following instrument was executed by said builders, delivered to the plaintiff, and accepted' as therein stated by the defendants:

*224“ September 4th, 1886.

“ Gentlemen,

Please pay to Richard Flanagan the sum of $500, and charge the same to our account and oblige,

Very Resp’t.

Fonher & Lowther.”

“ To P. & D. Mitchell.

“ Accepted payable out of standing trim payment.

P. & D. Mitchell,

Attorneys for loan.”

This action is to enforce payment of such instrument.

The learned trial judge correctly instructed the jury that the words “ Attorneys for loan ” were mere surplusage, to be disregarded, and, further, that the instrument was not to be taken as an ordinary bill of exchange absolutely accepted, but that defendants’ action in the premises constituted a conditional acceptance. The obligation thereunder consequently could not become absolute until the condition therein named was fulfilled. It appears, however, that the complaint contains .an allegation that there came into the hands and possession of defendants a sum exceeding five hundred dollars on account of said standing trim payment, and that they retained and kept the amount from the said Fonner and Lowther on account of the order or draft above mentioned. This allegation is not denied or referred to in the answer, and must therefore be taken as admitted for the purposes of the trial. This is of course the strict legal effect of allowing an allegation to go undenied in the pleading, and furthermore, it hardly seems that the omission could have resulted from inadvertence, because the defendant who testified on the trial on this subject would only say that the standing trim payment was never due, and that he did not think it was made as a matter of fact. This witness further states the conclusion of law that money never was advanced to Fonner & Lowther that ought to have gone to Mr. Flanagan, and adds that the money that Fonner & Lowther got after all these liens and judgments were put on was a matter of grace. The question *225attempted to be raised in such evidence with regard to the falling due of the standing trim payment relates to the construction of the building loan contract to Fonner & Lowther. We should be obliged to hold the defendants to their admission in the answer under any circumstances, and a perusal of Mr. Mitchell’s testimony convinces us that no actual injustice results from the application of such technical rule.

But, although the condition of the acceptance must be held to have been fulfilled, the appellants further argue that there was no consideration to support the obligation undertaken by the Messrs. Mitchell. One ground of error assigned is, the exclusion of the question to one of the defendants—“Did you ever receive any consideration, or did you, as attorneys for the parties making the loan, receive any consideration for this acceptance ? ” We think this question was immaterial. As between .these parties it was not of the slightest consequence whether the defendants gained any advantage for the obligation they incurred. The real consideration here was forbearance on the part of the plaintiff. He testifies that before the draft was signed there was a request made upon Mr. Mitchell to pay him money. “Mr. Mitchell said he did not owe them money just then ; that he could not advance me [him] any money, because there was not enough security for the same. Then I, said ‘ Mr. Mitchell, I will have to put a lien on the job if you don’t.’ He said : ‘ No, I would not do that. ... If they give you an order I will accept the order on the standing trim payment. ’ ” Plaintiff’s theory of this action is that, relying on Mr. Mitchell’s acceptance, he did not take immediate steps to secure himself by a lien. This is certainly ample consideration in law to hold the defendants, and the question whether or not they received anything by way of indemnity or direct profit for their acceptance ' would be collateral to the issues of the present case.

The defense was also raised that the amount of this draft was intended to be merged into a mortgage subsequently given by the builders to the plaintiff. Plaintiff on his part denied that the amount of said draft was included in said *226mortgage and that it never was intended that the same should he extinguished. The evidence was conflicting on this point, and the question was fairly submitted to the jury, and their verdict in plaintiff’s favor must stand. The answer does not allege whether a bond or note or any other instrument accompanied the mortgage. Even if this mortgage had been given as collateral security for the draft and other indebtednesses, said draft, and the right to sue upon it independently, would not have been extinguished.

.Counsel for appellant contends that the exclusion of the contract between Andrew J. Skinner and Sarah E. Lowther and James S. Fonner was error, necessitating a reversal. But this contention cannot prevail. The defendant referred to such contract and refreshed his memory from it in giving his evidence; and subsequently counsel for plaintiff withdrew all objection and the defendants were given an opportunity of introducing such contract in evidence at a later stage in the case if they so desired. This offer they then refused, and we think that any error that might have existed by reason of the original exclusion was thereby cured.

The judgment appealed from should be affirmed, with costs.

Bookstaver, J., concurred.

Judgment affirmed, with costs.