Chesterman v. McCatline

2 Edm. Sel. Cas. 431

• Court: New York Circuit Court
• Decided: July 1, 1846
• Status: Published

Opinion

The Cvreuit Judge:

One of the objections to this judgment is, that the agreement between these parties is collateral to that between plaintiff and Lockwood, and therefore void, because not in writing.

"This is not well taken. The agreement was original and the case was properly left to the jury to say whether the work was done under that, or under the one with Lockwood. They found, the former.

The next objection is, that the court below refused to non-suit. A refusal to nonsuit is never a ground of exception, where there is any evidence to submit to the jury. It is only where there is no dispute about the facts and the question is solely one of law, that it becomes the right of the party to demand that the court nonsuit.

In this case, if the agreement had been collateral, it would have been the duty of the court to have granted the nonsuit, because the plaintiff had no right to recover. But, as it was properly held to be original, there was a question to be submitted to the jury, viz., whether the work was done under that agreement or under another, and, of course, it was proper to refuse the nonsuit.

The next objection is, the admission of evidence of what the witness Lockwood had formerly testified. This is unfounded. L. was defendant’s witness, and plaintiff had not made him his, and what he had testified before was competent to impeach him.

The exception to the charge of the judge was too general. It went to the whole charge, while it is manifest that portions of it were correct. If a party wishes to avail himself of the benefit of any error in the charge, he must point his exception directly to it at the time, so as to enable the opposite party to obviate the objection, or the judge to correct any hasty or careless expression, and if he omits to do so, and contents himself with resting on a general exception, he runs the hazard of having his exception disregarded, if any part of the ruling be correct.

Thus far there is nothing in the case to warrant us in disturbing the judgment below.

But there is another point in regard to which the court below erred; and that was, in charging that on an account for work and labor interest was chargeable from the rendition of the services. For this error, the judgment must be reversed and

A mrwre de nevo awarded.