Woodwakd, J.
The. defendant requested the court to give the following instructions to the jury: 1.- That if Ti-field quit the office, either because he was not wanted, or because his wages were not high enough, such quitting may be regarded as an abandonment of the old contract; which the court gave, with this qualification: “If Tiñeld voluntarily quit,” &c. To this qualification, the defendant excepted. He also asked the following: “2. That the fact that Tifield quit the office, and did not edit the weekly or daily for several days, and that they tried to make a new contract which would have superseded the old one, may be construed to be an abandonment of the old contract by both of the parties,’’’which the court gave, with the qualification: “If his quitting was voluntary;” to which, qualification the defendant excepted, and these are assigned as error.
We do not think these instructions are good law, in the form proposed by counsel. In the first one, the first supposed cause for leaving, “because he was not wanted,” is vague and ambiguous. It implies a failure (at least) of employment under the contract, if it does not also imply a delinquency on the part of Adams, in furnishing such employment. It may also carry the idea, that there was an. unwillingness in the latter to have him remain employed in the office. Under none of these circumstances, would his leaving amount to an abandonment on his part. The second supposed cause of leaving, because his wages were not high enough, may imply delinquency on the plaintiff’s side, fairly enough, but as the party associated this with the other cause, which is bad, and could not be given without qualification, he must lose the benefit of this. The second of the above instructions requests the court to assume the fact, that T. did quit the office, and did not edit the paper •for several days; and then to charge the jury that from'that [499]*499fact, and from tbe parties having tried to make a new contract which should supersede the old one, they might infer an abandonment. The court was certainly right in refusing this. This court has been called upon to reverse judgments for the reason, that instructions to the jury assumed facts to be proven, and the District Court was correct in declining to do so. It went full far enough, in favor of the defendants, in giving the instruction with the qualified expression.
The defendant requested the following instructions: “That if Tifield did not wish to abandon the first contract, he should have refused to quit; but if the jury believe he did quit, and that he was absent several days from the office, Adams had a right to refuse to receive his copy, which he brought after they failed to make a new contract,” which the court refused to give, and the defendant excepted. Although the court may, in its discretion, sometimes give instructions, with qualifying terms, yet it is not the duty of a court so to correct or limit them. It may refuse them totally, and leave the party proposing them to assume the hazard of their entire correctness. This instruction commences with taking for granted a fact, and that too, one which, if proved, wouid not benefit the defendant. That part of it also, which relates to the party’s quitting, is totally unqualified in reference to the cause which may have influenced him to leave, if in fact he did so. We think the court did right in refusing to give this in charge. In these instructions the word “ quit ” needs explanation, in order to a perfect understanding. If it means leaving the office, that is an immaterial circumstance. If it means leaving the work of editor, then the assumption is contradicted by the testimony, which says that he continued to oifer copy, and no other refusal to quit was called for than a silent continuance in the discharge of his duties.
The defendant further asked the court to .charge the jury, “that if, after Adams took ILackley into partnership, Tifield performed work as editor for .Adams k Hackley, and received pay from them; this, by operation of law, amounts to an extinguishment of the original contract, and [500]*500the making a new one between Tifield and the partnership. The court declined to give this instruction, and in this it did not err. Adams could not release himself from his contract, by entering into a partnership; nor does Tifield’s continuance in the discharge of his duties, though during the existence of the partnership, imply a waiver of the first agreement. The burden is on Adams to show the substitution of a new arrangement.
A further error assigned, arises on the following facts: By the consent of the parties, the court authorized the jury to seal up their verdict, and hand the same to the court by their foreman, and disperse. They did so seal the verdict and separate. The verdict was opened and read- by the clerk in open court. It was as follows: “We, the jury, find for the plaintiff, according to contract.” The plaintiff moved that the verdict should be recommitted to the - jury to be amended, which was done, the defendant objecting. The court instructed them, that they must “assess the amount of the plaintiff’s damages, allowing the defendant all credits to which he is entitled:” The jury returned the verdict in the same terms as before, with the addition of the amount of damages found. It does not appear to us that this proceeding is erroneous. The practice of permitting a jury to separate, after agreeing upon and sealing up their verdict, is common with us, and is convenient, especially when the jury is sent out at a late hour in the day. But the practice should be carefully guarded against all abuse. Usually the jury is assembled in their box before the verdict is opened, and this should be the course. It is possible that in the present case, the defendant intends that the court shall infer, that the jury were not re-assembled before the verdict was opened. This is not apparent. If such was the fact, and if it would change the case, the defendant’s bill of exceptions should have made it clear. The inferences are to be in favor of the court. We do not stop to determine whether this would make a difference, but take the facts in the present instance to have been according to the usual practice. In all cases of the rendition of a sealed verdict, [501]*501the court should be careful to have the jury present at the opening of the verdict, if it be at all practicable; for this is the only opportunity for the correction of the verdict, when it is so informal that it cannot be rectified by the court, as in the'present cause. - In Douglass v. Tousey, 2 Wend. 352, it was late in the evening when the cause was committed to the jury. The judge, without the express consent of counsel, directed them to seal up their verdict, and bring it in the next morning. They presented it, and when polled one of them refused to agree to it. They were sent out again. It was held to be no error. This case is very analogous to the one at bar. See also People v. Douglass, 4 Cow. 26; 1 Cow. 221; 5 Cow. 283; Bunn v. Hoyt, 3 Johns. 255; Lawrence v. Stearns, 11 Pick. 501.
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Woodwakd, J.
The. defendant requested the court to give the following instructions to the jury: 1.- That if Ti-field quit the office, either because he was not wanted, or because his wages were not high enough, such quitting may be regarded as an abandonment of the old contract; which the court gave, with this qualification: “If Tiñeld voluntarily quit,” &c. To this qualification, the defendant excepted. He also asked the following: “2. That the fact that Tifield quit the office, and did not edit the weekly or daily for several days, and that they tried to make a new contract which would have superseded the old one, may be construed to be an abandonment of the old contract by both of the parties,’’’which the court gave, with the qualification: “If his quitting was voluntary;” to which, qualification the defendant excepted, and these are assigned as error.
We do not think these instructions are good law, in the form proposed by counsel. In the first one, the first supposed cause for leaving, “because he was not wanted,” is vague and ambiguous. It implies a failure (at least) of employment under the contract, if it does not also imply a delinquency on the part of Adams, in furnishing such employment. It may also carry the idea, that there was an. unwillingness in the latter to have him remain employed in the office. Under none of these circumstances, would his leaving amount to an abandonment on his part. The second supposed cause of leaving, because his wages were not high enough, may imply delinquency on the plaintiff’s side, fairly enough, but as the party associated this with the other cause, which is bad, and could not be given without qualification, he must lose the benefit of this. The second of the above instructions requests the court to assume the fact, that T. did quit the office, and did not edit the paper •for several days; and then to charge the jury that from'that [499]*499fact, and from tbe parties having tried to make a new contract which should supersede the old one, they might infer an abandonment. The court was certainly right in refusing this. This court has been called upon to reverse judgments for the reason, that instructions to the jury assumed facts to be proven, and the District Court was correct in declining to do so. It went full far enough, in favor of the defendants, in giving the instruction with the qualified expression.
The defendant requested the following instructions: “That if Tifield did not wish to abandon the first contract, he should have refused to quit; but if the jury believe he did quit, and that he was absent several days from the office, Adams had a right to refuse to receive his copy, which he brought after they failed to make a new contract,” which the court refused to give, and the defendant excepted. Although the court may, in its discretion, sometimes give instructions, with qualifying terms, yet it is not the duty of a court so to correct or limit them. It may refuse them totally, and leave the party proposing them to assume the hazard of their entire correctness. This instruction commences with taking for granted a fact, and that too, one which, if proved, wouid not benefit the defendant. That part of it also, which relates to the party’s quitting, is totally unqualified in reference to the cause which may have influenced him to leave, if in fact he did so. We think the court did right in refusing to give this in charge. In these instructions the word “ quit ” needs explanation, in order to a perfect understanding. If it means leaving the office, that is an immaterial circumstance. If it means leaving the work of editor, then the assumption is contradicted by the testimony, which says that he continued to oifer copy, and no other refusal to quit was called for than a silent continuance in the discharge of his duties.
The defendant further asked the court to .charge the jury, “that if, after Adams took ILackley into partnership, Tifield performed work as editor for .Adams k Hackley, and received pay from them; this, by operation of law, amounts to an extinguishment of the original contract, and [500]*500the making a new one between Tifield and the partnership. The court declined to give this instruction, and in this it did not err. Adams could not release himself from his contract, by entering into a partnership; nor does Tifield’s continuance in the discharge of his duties, though during the existence of the partnership, imply a waiver of the first agreement. The burden is on Adams to show the substitution of a new arrangement.
A further error assigned, arises on the following facts: By the consent of the parties, the court authorized the jury to seal up their verdict, and hand the same to the court by their foreman, and disperse. They did so seal the verdict and separate. The verdict was opened and read- by the clerk in open court. It was as follows: “We, the jury, find for the plaintiff, according to contract.” The plaintiff moved that the verdict should be recommitted to the - jury to be amended, which was done, the defendant objecting. The court instructed them, that they must “assess the amount of the plaintiff’s damages, allowing the defendant all credits to which he is entitled:” The jury returned the verdict in the same terms as before, with the addition of the amount of damages found. It does not appear to us that this proceeding is erroneous. The practice of permitting a jury to separate, after agreeing upon and sealing up their verdict, is common with us, and is convenient, especially when the jury is sent out at a late hour in the day. But the practice should be carefully guarded against all abuse. Usually the jury is assembled in their box before the verdict is opened, and this should be the course. It is possible that in the present case, the defendant intends that the court shall infer, that the jury were not re-assembled before the verdict was opened. This is not apparent. If such was the fact, and if it would change the case, the defendant’s bill of exceptions should have made it clear. The inferences are to be in favor of the court. We do not stop to determine whether this would make a difference, but take the facts in the present instance to have been according to the usual practice. In all cases of the rendition of a sealed verdict, [501]*501the court should be careful to have the jury present at the opening of the verdict, if it be at all practicable; for this is the only opportunity for the correction of the verdict, when it is so informal that it cannot be rectified by the court, as in the'present cause. - In Douglass v. Tousey, 2 Wend. 352, it was late in the evening when the cause was committed to the jury. The judge, without the express consent of counsel, directed them to seal up their verdict, and bring it in the next morning. They presented it, and when polled one of them refused to agree to it. They were sent out again. It was held to be no error. This case is very analogous to the one at bar. See also People v. Douglass, 4 Cow. 26; 1 Cow. 221; 5 Cow. 283; Bunn v. Hoyt, 3 Johns. 255; Lawrence v. Stearns, 11 Pick. 501.
It is further to be remarked, that in the present case, in order to abbreviate the proceedings, and to save trouble and expense, the parties entered into an agreement, by which it is provided, that if the verdict be in favor of plaintiff, judgment shall be entered for the whole amount which, under such finding, would be due under the contract to the plaintiff up to the time of rendering judgment.” It would appear from this agreement, that the only real question between the parties was, whether the defendant was still liable on his original contract, and that if he was, the amount was determinable by the contract itself. Almost might the clerk himself compute the damages on this agreement. There was nothing to be done by a jury, beyond what is to be done on a promissory note, except the ascertainment of the payments to which the defendant was entitled. We recognize the thought, that the purity of trial by jury is to be guarded with undiminished jealousy, but we do not think it has been in the least degree contaminated in the present instance. The judgment of the District Court is affirmed.