Under a general denial a defendant may offer evidence to show that the contract actually made was another than that pleaded in the complaint. Thus, where the complaint alleges that the broker brought about an absolute sale, the principal may, under a general denial, show that the broker secured a person who took an option only.44
Evidence of gross misconduct, fraud or negligence on the part of the broker has been held admissible where only the general issue was pleaded.45 On the other hand, an abandonment of the employment by the broker as well as an express termination of the employment, have been held to be matters of defense and do not have to be negatived by the plaintiff in the course of his proof to support a cause of action for commission.46 And that the broker did not act in good faith has also been held to be matter of defense.47
43 McLaughlin v. Whiton, 37 Misc. 838 (N. Y. 1902). 44 Brown v. Wlsner, 51 Wash. 509; 99 Pac. 581 (1909). 45 Ency. of Pl. & Pr., 836. 46 Moore v. Boehm, 45 Misc. 622 (N. Y. 1904).
An agent cannot be interested in the profit of a sale to his principal, and even though a person is not a party to an agreement to share the profit, he becomes liable to account under an allegation that he received and kept a share of the profit.48
Although an act is done through an agent, it should be alleged as done by the principal, leaving the method of doing it to the proof.49 Where false representations are made through an agent and the principal is sued, it is unnecessary to allege any agency in the making of the representations. A simple allegation that they were made by the defendant is appropriate.50
47 See Sec. 141 supra.
48 Colonizers Realty Co. v. Shatzkln, 129 App. Div. 609 (N. Y. 1909). See also Sec.5 142-145, 252-257 supra. As to whether the defendant may show, under a general denial, that the broker had agreed for commissions from both sides without the knowledge of the defendant, or whether It must be alleged as a defense, see Sec. 58 supra.
49 Moffett v. JafTe, 132 App. Div. 7 (N. Y. 1909).
50Harlow v. Haines, 63 Misc. 98 (N. Y. 1909).