Gruman v. Smith

16 Jones & S. 513

Opinion

The court at General Term, held: “ That this charge would have been a practical aid to the jury in determining what the fact was upon the testimony that was not explicit or full. It would have prevented the jury from thinking that it was enough if it did not appear that the brokers had failed in their duty. The plaintiff was bound affirmatively to prove what the contract was, and that the brokers had fulfilled their part of it.

“As the answer stood, it did not permit proof of the counter-claim as presented by defendant’s evidence. The breach alleged by the answer was, that the brokers did not account for the money of defendant, alleged to have been received by them. The proof was, that they expended the money on certain North Carolina bonds. The defendant had ordered the money to be expended on North Carolina bonds. He was informed that the brokers had bought the bonds, and they were delivered to him. His allegation was that the bonds were nob valid. The answer was not sustained.”

George Putnam Smith, for appellant. Jacob S. Van Wyck, for respondent.

Opinion by Sedgwick, Oh. J.; Freedman, J., concurred.

For the error in refusing to charge as requested, the judgment was reversed, and a new trial ordered, with cost of appeal to appellant to abide event of the action.