[After stating the facts as above, (ante, p. 367),]—The allegations of the complaint alleging ownership by plaintiff of coupons issued by the Utah and Pleasant Valley Railway Company, in connection with its first mortgage bonds, was sufficient to call for a denial by the defendant of the corporate capacity of the company, or the lawful issue of the securities, had he desired to present those questions for consideration. He admitted by answer the possession of a like number of coupons purporting to be issued by the same corporation, but denied knowledge of identity. This disposed of incorporation and regularity of issue. It appears from the record that the coupons in suit had been cut from bonds pledged as collateral to the notes indorsed by plaintiff, and this, although slight, would be sufficient proof of identity, in the absence of serious contention.
The plaintiff’s title to the coupons rests upon the agreement dated August 30th, 1879, and May 20th, 1880. The first named assigned to him one half interest in the bonds, and consequently in the coupons of November, 1879, and May, 1880, then attached thereto. The ownership of the other half interest in those, and the series of May, 1879, then being detached from the bonds, is claimed under the agreement of May 20th, 1880, assigning to him all claims and demands then held by Scofield against the company for money lent or advanced. Possession of the coupons of November, 1879, and May, 1880, had been acquired by Scofield from paying the interest on his notes to which bonds and coupons were pledged as collateral. They constituted in his hands claims against the company, but in no sense represented money either lent or advanced by him to it. Being enforceable obligations of the corporation, they no more represented money lent or advanced, than if bought by him in the market. Neither are they included in the terms of the agreement assigning to DeGraaf, “ any portion of said bonds or -the money that may be' secured thereby.”
The coupons were then detached, and not even a part, much less a “ portion ” of the bonds, but separate instruments capable of negotiation and transfer (Evertson v. Na*371tional Bank of Newport, 66 N. Y. 17). The legal effect of the agreement in this respect, its terms being unambiguous and explicit, should have been decided by the learned court, and not submitted to the jury upon the questions of intent. The meaning of a contract free from doubt in phraseology cannot be made dependent upon the verdict of a jury finding the intent of the parties. I am of opinion that the plaintiff showed no title to the coupons of May, 1879, nor to one half of those of November, 1879, and May, 1880.
James R. Marvin, for appellant. Cephas Brainerd, for respondent.This conclusion will necessitate a new trial, which may be facilitated by brief reference to some other points suggested on the argument. The complaint alleges the nominal and actual value of the coupons to be $35 each. This was not an issuable allegation, and the absence of a denial in the answer would not amount to an admission (Connoss v. Meir, 2 E. D. Smith 314). The exception to the exclusion of evidence tending to show the value of the coupons was well taken.
The sale by DeGraaf to himself, Sheldon and Pratt, was not void, but liable to impeachment for fraud or collusion. The issue was properly submitted to the jury.
The judgment should be reversed and a new trial ordered with costs to the appellant to abide the event.
Pursuant to this decision, rendered at the May General Term, 1884, a second trial of the action was had, at which plaintiff’s counsel moved for judgment upon the pleadings as they stood, insisting that the allegations in the complaint were not denied and were therefore admitted by the answer. An offer was made to prove the amount of interest upon the claim in suit, which offer was refused by the court, and thereupon the complaint was dismissed and judgment ordered in favor of the defendant. From the judgment for defendant thereupon entered plaintiff appealed.
*372Larremore, J.—[After stating the case as above, (ante, p. 368).]—The only question raised upon the appeal is to be determined by a construction of the pleadings in the action. It is evident by an inspection of the first paragraph of the answer that the identity of the coupons in suit was expressly put in issue. The defendant admits that he lawfully held 758 coupons purporting to be issued by the “ Utah and Pleasant Valley Railway Company of Utah,” but no inference can be drawn from this admission that they were the identical coupons claimed by the plaintiff.. It is fair to assume, in view of the general knowledge of such corporate transactions, that each coupon bbre the corresponding number of the bond from which it had been detached, and it may well be argued, so far as the testimony shows, that both the plaintiff and defendant were possessed of 758 coupons of said company, which were each separate and distinct obligations. Until the identity of the coupons had been established by competent proof, there was no necessity to receive evidence of the interest due upon the plaintiff’s claim, and the complaint was properly dismissed.
When this case was last before us, at the May General Term, 1884, the court decided, among other things, as follows : “ The complaint alleges the nominal and actual value of the coupons to he $35 each. This was not an issuable allegation and the absence of a denial in the answer would not amount to an admission.”
The judgment appealed from should be affirmed, with costs.
Charles P. Daly, Ch. J., and Van Hoesen, J., concurred.
Judgment affirmed, with costs.