Wilcox & Gibbs Sewing Machine Co. v. Himes

It may not be at all necessary to add anything to the opinion given by the court below upon the decision of the motion. But, in view of the insistance upon the part of the appellant that the papers show that there are at least four witnesses necessary to the defendant to prove the defense set up in his answer of a surrender of the license, it may be proper to call attention to the condition of the pleadings , in that regard. The contract between the parties, which is called a “lease,” and which formed the basis of this action, contained a provision that the lessee should have the option at any time to surrender said lease- and the machines mentioned therein, provided he shall have complied with all and singular the obligations of the lease, and settled his indebtedness to the lessor thereunder; and, upon such surrender of the said, lease and machines, the lessee should be discharged and released from, any and all obligations, agreements, and covenants thereunder assumed by him. By the filth paragraph of the answer the defendant alleges-upon information and belief that on or about the 1st of January, 1885, he fully complied with all and singular the obligations of said contract, and settled his indebtedness to the plaintiff thereunder, and surrendered said license and machines received from the plaintiff. It is apparent, that by this allegation the defendant did not intend to aver that-he had returned to the plaintiff all the machines received from it, because the complaint alleges the receipt of a considerable number of machines; and the defendant, by the very next' paragraph of his answer, admits. *762the receipt of these several machines mentioned in the complaint;—10 or more in number,—and then denies that the same were used after January 1, 1885, and alleges the absolute return to and receipt by plaintiff of two of said machines, which is a clear concession that all the machines mentioned in the complaint had not been returned. The allegation of the surrender of the license, therefore, is merely the pleader’s conclusion as to a mixed question of law and fact. It seems to be reasonably clear that if the defendant did not return the machines in pursuance of the provisions of the lease, no surrender of the license actually took place; and therefore the allegation in the affidavit that certain witnesses are necessary to prove the surrender of the license and the machines becomes entirely immaterial, as there can be no surrender without the return of the machines, and by the pleadings no such return is averred, and no such return or offer to return was ever made of the large majority of them. It would therefore seem that there were- no witnesses which could be examined who could give evidence material to the defense alleged. We are of opinion, therefore, that for the reasons assigned in the court below, and for the foregoing reason, no ground was shown for changing the place of trial, and the motion was properly denied, and the order should be affirmed, with costs. All concur.