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charcoal made from hard wood to finding. All it would amount to be purchased by Holcombe, the is that if defendants had sued same to be delivered on the cars plaintiff for non-performance the and paid for on the 15th of each latter might have pleaded that his month. Under this clause the non-performance was assented to second cause of action was laid. by defendants. Damages could The breach alleged under the first only be recovered by plaintiff by cause of action was that defend- a tender of performance on his ants prevented and discharged said part or because a tender of perforHolcombe from supplying them mance was prevented by some act with coal as aforesaid and from of defendants. As against Landon further executing said contract. the interview was of no weight. Plaintiff was also allowed to prove What Munson said about the conunder objection that defendant tract after Landon had sold out Landon had agreed by parol would not bind the latter. Of with Geo. P. Holcombe after the course by selling out Landon was signing of the contract, that the not excused from the contract and latter should deliver 100,000 bush- a tender to Munson would have els of coal during 1880 under the been good as to Landon, and Munsecond clause of the contract. Un- son's refusal to accept would have der both clauses the referee allowed been the refusal of both. But a total recovery of $14,000, al- there was no tender : and Landon though he did not specify how testified he was always ready and much damages he gave under each willing to perform. It was also separately.

error to allow parol evidence of E. Cowen, for applt.

the number of bushels of coal to J. Lansing, for respt.

be furnished under the second Held, Error. The defendant cause of action. The damages alLandon sold out his interest in the lowed under this head, as near as firm of Munson & Landon to the we can estimate, are $2,000. Such Portchester Iron Co. on April 3, an addition to a written contract 1980. The finding of the referee should be in writing and signed by that defendant prevented Geo. P. the parties. It was for the purHolcombe from executing the con- chase of $12,000 worth of charcoal tract is based upon an interview of which no part was delivered had on May 13, 1850, between Geo. and on which nothing was paid. P. Holcombe and Munson, Landon Judgment reversed, new trial not being present, in which Mun- granted, referee discharged, costs son said that they could not carry to abide event. out the contract as agreed ; that Opinion by Fish, J.; Learned, the price was too low and that he P.J., concurs; Landon, J., not would ignore the contract and acting. take the consequences.

This interview is denied by Munson, but if true it does not support the Vol. 21-No. 3.

PRACTICE.

quest in

in that respect. The

counsel then said, “I ask your N. Y. SUPREME COURT. GENERAL

Honor to charge it in that langTERM. FIRST DEPT.

uage." To which the Court said, Margaretta Pfeffele, admrx.,

“I will not accept any request respt., v. The 2d Ave. RR. Co.,

now, the counsel having already applt.

presented his requests to charge." Decided Jan. 9, 1885.

Whereupon counsel for defendant The Court, upon the trial of an action be- excepted to the refusal of the

fore a jury, has no right to refuse to ac- Court to charge and to its refusal cept a request to charge made after the conclusion of its charge to the jury upon

to accept any request. the ground that counsel had already, be

Austen G. Fox, for applt, fore the commencement of the charge,

Samuel Untermeyer, for respt. presented such requests, and a refusal to Held, Error : That the refusal accept such request is a fatal error.

to accept a request to charge is a Appeal from judgment entered fatal error in the conduct of a trial. on verdict in favor of plaintiff. 86 N. Y., 479. That, in principle,

This action was brought to re- it makes no difference whether the cover damages for the death of requests to charge are presented plaintiff's husband, which was before or after the charge is delivcaused by a collision between a ered. 88 N. Y., 671. That emertruck driven by him and one of gencies may arise making it defendant's cars, and which collis necessary to make further requests ion, it was alleged, was caused by after the conclusion of the charge, the negligence of defendant's ser- and it is not only the right, but the vant. This collision occurred duty of counsel to make such rewhile defendant's car was descend- | quests in the discharge of his proing a grade and was beyond the fessional obligations, not only to control of the driver, the front con- his client, but to the court, as the nection rod having been broken. emergency demands. Plaintiff claimed that there was Judgment reversed and new trial evidence showing that the connec- ordered. tion rod broke before the car Opinion by Brady, J.; Daniels, reached the top of the hill and be- J., concurs. Davis, P.J., disgan to descend the grade, and after sents upon the ground that the the judge had charged the jury, | Judge had already charged upon but before they had retired, and the request presented, and that it immediately upon his concluding was no error to refuse to charge in the charge, defendant's counsel re- its exact language, and that the exquested him to charge the jury ception to the remark of the Court that if they believed the connec- that it would receive no further tion rod broke at the top of the requests raised no material queshill defendant was entitled to a tion, because no further requests verdict. To which the Court res- were offered and that to make ponded, “I have charged your re- such a refusal a ground of error it must appear that farther requests lowed, under objection, to show by were presented, what they were, parol evidence that the parties did that they were material, etc. not intend that the writing should

take effect as an agreement, but

was signed to hinder a judgment PARTNERSHIP EVIDENCE.

creditor of plaintiff from enforcing N. Y. SUPREME COURT. GENERAL his judgment and that, in fact, the

TERM. FOURTH DEPT. parties never engaged in business Loren W. Marsh, applt., v. Syl- under the writing. vester P. Pierce, respt.

The referee found that the writ

ing was signed to create an apparDecided Jan., 1885.

ent partnership for the purpose of In an equity action a new trial will not be preventing a creditor of plaintiff granted for errors in the admission or ex

from collecting a judgment about clusion of evidence if the case has been rightly decided upon sufficient and compe

to be recovered, and ordered the tent evidence.

judgment appealed from. In an action for a partnership accounting On this appeal the following

where such co-partnership is denied, oral stipulation was made : “Plaintiff evidence is admissible to show that the ar

concedes and admits on the arguticles of copartnership were not intended to operate as a contract between the par

ment of the appeal in this action, ties, but were made for the purpose of de- that there is sufficient evidence to frauding plaintiff's creditors.

sustain the referee's findings of Appeal from judgment, dismiss- fact, and the referee's findings of ing complaint, entered on the re- fact are not against evidence or port of a referee.

the weight of evidence.” Action for a partnership account- C. E. Stephens, for applt. ing. Jan. 12, 1872, plaintiff owned F. A. Lyman, for respt. a stock of drugs and was engaged Held, If the language of this in business as a druggist. On that stipulation is to be understood in day the parties hereto signed. a its usual and legal signification, writing which purported to form there is nothing to be determined an equal copartnership between on this appeal; because, if there them in that business to take effect was sufficient evidence to sustain as of Jan. 1, 1872. Jan. 21, 1878, the findings of fact the conclusion the stock was sold out and the of law necessarily follows, and that business discontinued.

is an end of the case. In an equity This action was brought in April, action a new trial will not be grant1879, the complaint alleging that ed for errors in the admission or by virtue of the writing the parties exclusion of testimony if the case became equal copartners Jan. 1, has been rightly decided upon suf1872, and continued in business as ficient and competent evidence. such until Jan. 21, 1878. The an- Code Civ. Pro., $1003. But asswer denied that a copartnership suming that plaintiff intended to ever existed between the parties. stipulate that if the testimony re

On the trial defendant was al-ceived over his objection was legal

evidence, it was sufficient to sus- Opinion by Follet, J; Hardin, tain the findings of the referee, P. J., and Boardman, J., concur. then the exceptions become available on this appeal.

TITLE. COVENANTS. When the existence of a written contract is asserted and denied, an N. Y. SUPREME COURT. GENERAL issue of fact is formed which must

TERM. FIFTH DEPT. be determined by oral evidence, Ann M. Dawley, applt., v. Emily except when different evidence is N. Rugg et al., respts. authorized by statute. Upon this

Decided Jan., 1885. issue it may be shown by oral evi

A release by a grantee of all rights of action dence that a writing, in form a

under the covenants of his grantor's deed perfect contract, was not intended

does not affect the title acquired by the by the parties to be, or operate as grantee under the deed. such, or that it does not express a Appeal from judgment on vercontract entered into between the dict at Circuit and from order departies. 60 N. Y., 394 ; 2 H. & C., nying new trial. 277 ; 11 C. B., N. S., 369; 6 E. & Ejectment. First trial resulted B., 370; 33 L. T., 672; 24 W. R., in favor of plaintiff, who went into 159 ; 2 B. & C., 82; 1 Keyes, 532; possession. Defendants took a new 32 N. J. Eq., 233–826 ; 40 Mich., trial and secured a verdict. Plain84; 32 Md., 136 ; Whart. Ev., tiff's motion for new trial was de$ 927; 1 Chitty Cont. (11 Am. Ed.), nied and judgment was entered on 159 ; Leake Cont., 186. This is not the verdict. Plaintiff appeals. in conflict with the rule that a B

Both plaintiff and defendant Emily written contract cannot be varied claimed title under deeds from one by oral evidence.

J. R., father of plaintiff and of deThat plaintiff's admissions, made fendant Emily's husband. After subsequent to the date of the writ- plaintiff took possession under her ing, that the parties were not co- judgment defendant Emily sued partners, were competent. 8 R. the executors of J. R. on the coveI., 389; 1 Greenl. Ev., $ 245. nants of quiet enjoyment, etc., in

That the writing having been the deed to her. That suit was made by plaintiff to defraud his settled, Emily receiving $500 and creditors, he is not entitled to the releasing to said executors and all aid of a court of equity to adjust the heirs at law of J. R. all her the accounts arising out of the claims and cause of action on said fraudulent scheme. 4 Hill, 424; covenants. On the second trial 15 N. Y., 33+; Story Eq. Jur., plaintiff set up the facts of such $ 298; Pomeroy Eq. Jur., SS 401, settlement. The court denied plain910; Snell's Eq., 35. A court of tiff's request to hold that the effect equity will not, as between the of the release made by defendant parties to a fraud, take an account | Emily on such settlement was to and divide the fruits of the fraud. | defeat her claim of title under the

Judgment affirmed, with costs. deed to her as an estoppel, or as a release of her interest in the prem

A civil action does not lie against one who, ises. The verdict is supported by

while a witness in a civil trial in which

the plaintiff was a party, testified falsely. the evidence, unless the release de

The witness must be left to the criminal feated defendant's right to assert law. title under the deed from J. R. While a suit is pending no action in the na. W. Woodbury, for applt.

ture of a suit for maliciously or without W. S. Thrasher, for respts.

probable cause instituting the pending

suit can be maintained. Held, That the release and settlement did not affect defendant's

Appeal from judgment on dis

missal of complaint. title under the deed. It did not in terms release any interest in the

The complaint alleged that depremises, and no greater effect can

fendant, in violation of his promise be given to it than its purpose, as

to plaintiff, notified John Jones certained by its terms, fairly jus- what prices plaintiff was intending tifies. The conveyance of title did

to bid on various parcels put up for not depend upon the covenants;

sale, and in consequence said John

Jones underbid plaintiff on two they were personal obligations assumed by the grantor, which were

parcels and overbid him on two valueless if his title was perfect.

parcels, to plaintiff's great damage. The legal effect of the release is

It also alleged that detendant

falsely testified in an action benothing more than taking the covenant from the deed and leaving and caused thereby irreparable enant from the deed and leaving tween Evan Jones and John Jones defendant to rely solely on her alleged title. The reasons why the

injury.

Plaintiff also complained that executors made the settlement and

defendant aided and abetted John paid for the release are not impor- Jones in making certain transfers tant here.

of property and had testified for Judgment and order affirmed.

and co-operated with John Jones Opinion by Bradley, J.; Angle in an action brought by plaintiff and Childs, JJ., concur.

to set aside the conveyances not

yet determined. PROMISE. PERJURY. MA- Louis H. Rowan, for applt.

LICIOUS PROSECUTION. Jacob F. Miller, for respt. N. Y. SUPREME COURT. GENERAL Held, That no cause of action is TERM. SECOND DEPT.

stated in the first paragraph. The Evan Jones, applt., v. Henry promise of defendant not to disMcCaddin, jr., deft.

close plaintiff's intended bids does

not create an obligation that the Decided Dec., 1884.

law will enforce. Aside from this, A promise not to disclose another's intended it is not plain what advantage John bid at an auction confided to the promisor gained nor what injury plaintiff does not create an obligation that the law will enforce, and no action lies for alleged

sustained by the disclosure. When damages due to a violation of such confi

the auction took place and the bids dence.

were made all the parties present

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