Musier v. Trumpbour

5 Wend. 274

• Court: New York Supreme Court
• Decided: July 15, 1830
• Status: Published

Opinion

By the Court,

Savage, Ch. J.

I am inclined to the opinion that a technical partnership existed as to the limeeach contributed materials and labor, and the lime was to be equally divided between the parties; but I apprehend it is not necessary to send these parties into a court of chancery to settle a dispute about $12,50. If there had been a partnership, there was but a single item to liquidate, the partnership being at an end ; and in such case, it was held by Lord Ellen-borough, in Robson v. Curtis, 1 Stark. R. 63, that the difficulty as to partnership would disappear. On this point, therefore I am of opinion that the plaintiff should not have been nonsuited.

On the other point, also, I think there was error. In justices’ courts, where the pleadings are usually conducted by the parties themselves, that technical nicety and precision are not required which are required in courts of record, unless the pleadings are demurred to. 5 Johns. R. 122. The declaration is to be liberally construed, so as, if possible, to meet and embrace the proof. 10 Johns. R. 104. 3 Cowen, 187, 278. I think the proof of a promise should have been received.

Judgment reversed, and venire de nova to Greene common pleas.