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    Pond and others vs. Clark and another.
    Although, to sustain a suit in chancery, it is necessary that the plaintiff should have an interest in the subj ect of such suit, yet where the plaintiff in a bill in equity, assigned his claim against the defendants pendente lite, (but whether such assignment was absolute, or qualified, did not appear,) and the trial of the cause afterwards proceeded without objection from the defendants, until after a report had been made by the committee to whom the cause was referred; it was held, that such bill ought not to be dismissed.
    Articles of copartnership between the plaintiffs and defendants, in a bill in chancery, brought for the settlement of a copartnership account, stipulated that the plaintiffs were to furnish the funds and credits necessary for conducting the copartnership business, and that, “all accounts, paid by either party for necessary disbursements in the business of the company, were to be charged to the concern.” A committee, to whom the cause was referred, found a balance of $1,597.16 for interest, in favor of the plaintiffs on disbursements, made in the year 1850. It appeared that, in 1851, the defendant was informed of the result of such business; at all times had access to the accounts on the partnership book, in which he was interested, and sometimes inspected them, but made no objection to such charge, until the hearing of the cause in 1857. Held, that it was then too late for the defendant to object to such charge of interest, for the first time.
    Where the defendants in 1850, entered into a contract with a firm in Porto Rico, for the transacting of business between Porto Rico and New York, by the terms of which it was provided that each of the defendants should be entitled to one-third of the profits of such business, and in 1851, they entered into articles of co-partnership with the plaintiffs, by which it was provided “ that the plaintiffs’ should be interested in said business, and that all shipments, made in pursuance of said contract, should be on joint account; that the plaintiffs should be one-third interested, and that the defendants should represent the then two-thirds interest;” it was held that the share of the plaintiffs in the profits of the entire business, transacted under said contracts, was not as was claimed by the defendants one-third of three-fourths, but one-third, thereof.
    Where it was provided, in articies of copartnership, between the plaintiffs and defendants, that the services of one member of the firm, should be rendered at a stipulated price, and such partner incurred expenses in the appropriate business of the firm at Porto Rico; it was held that such expenses were a propercharge against the copartnership, and that he had not forfeited his right to the same, by withholding from the other members of the firm, the proceeds of the partnership business, for the period of one month after his return to this country, and until requested by his copartners to make a settlement of said business.

      This was a bill in chancery, brought by Loyal S. Pond, and Samuel Gilman of the city of New York, and Louis F. Mack of Brooklyn, partners, under the name of Pond, Gilman and Mack, against Thomas B. Jewett, and David Phipps Clark, both of the city of New Haven.
    The bill, alleged substantially, that on the third day of January, 1850, at said city of New York, the plaintiffs entered into a special co-partnership with the defendants, in the business of chartering vessels and of buying goods and merchandize to freight the same, and of selling such goods and merchandize, and of navigating such vessels between the ports of New York, in said state of New York, and some one or more ports in the West India islands, and that, by the terms of said co-partnership, it was agreed, among other things, that the plaintiffs should furnish the necessary funds and credits for prosecuting said business; that the said Jewett, Clark and Pond, Gilman and Mack, should make no charges for services rendered in the way of brokerage or commission, or in any other way, except the said Clark, who was to have wages at the rate of sixty dollars per month, during the time he should be engaged, from the time of leaving said port of New York until his return there, in the business of said co-partnership, during its continuance, and his expenses necessarily incurred for the same ; that interest, at the rate of seven per cent, per annum, should be charged by the' said Pond, Gilman and Mack, for all advancements of funds by them made, and that the said Pond, Gilman and Mack, should charge a guaranty commission of two and a half per cent, per annum, on all time sales by them made, and that the said Pond, Gilman and Mack, were to receive one-third of the net profits of said business, and said T. B. Jewett was also to receive one-third of the net profits of said business, and the said Daniel Phipps Clark was also to receive the other one-third net profits of the same; which said co-partnership was not expressly limited in the term of its continuance, but, by the mutual understanding of all the parties to the same, might continue during the pleasure of the parties to carry on that business.
    That, relying on said agreement, and on the fidelity of the said Daniel Phipps Clark, plaintiff, during the continuance of said co-partnership, to wit, at various times, between the third day of January, 1850, and the 20th day of October, 1852, when said co-partnership terminated, and was dissolved by the misconduct of the said Daniel Phipps Clark, and the withdrawal of the plaintiffs from the same, advanced and paid into said co-partnership various large sums of money, amounting in all to twenty thousand dollars, pursuant to the terms of said co-partnership contract; that said Daniel Phipps Clark conducted the business of said co-partnership, in the said West Indies ; and that said co-partnership did a profitable business, that said Daniel Phipps Clark received, during the period aforesaid, a large sum of money, as the avails of such advancements by the plaintiffs in said copartnership business, amounting to over ten thousand dollars, but that the said Ciarle had never paid to the plaintiffs, nor to said Jewett, nor to either of them, any such avails, nor had the plaintiffs or either of them, or the said Jewett, ever received any of the monies or property of said co-partnership, nor had Clark ever rendered any account of the business of said co-partnership to the plaintiffs, though often requested so to do, and particularly on the first day of September, 1852. But the plaintiffs admitted that the said Jewett had always been and still was ready and willing to give a full account of all matters and things done by him in the said co-partnership business.
    The bill prayed that an account be taken of all the dealings and transactions of said co-partnership from its establishment to the time of its termination, and that said Clark be required to pay to the plaintiffs such sum, or sums, as might be due to them, upon a final settlement of all the accounts between all the parties aforesaid to said co-partnership agreements.
    The cause was referred to a committee, who, at the term of the superior court, holden in October, 1854, made their report, embracing the following facts.
    The plaintiffs, Pond, Gilman, and Mack, were commission merchants and brokers, in the city of New York; the defendant, Thomas P. Jewett, was a merchant, residing in New Haven, Connecticut, and the defendant, Clark, was a ship-master, of said New Haven, who sometimes resided for a few months in the island of Porto Rico, in the West Indies, as an agent for the purchase of the produce of that island, and in selling cargoes which had been shipped there.
    Prior to the autumn of 1849, the defendants, Jewett and Clark, and one Richard M. Clark, had been engaged as partners in a West India business ; in the course of which business, said Jewett had become indebted to the defendant, Clai'k, in the sum of f>689.53, but had never rendered his account of such business to said Clark.
    In the fall of 1849, the plaintiffs, and the defendants, Clark and Jewett, entered into a partnership for the purpose of transacting a Porto Rico business, by an agreement, which was afterward, on the eleventh day of January, 1850, reduced to writing, and signed by the parties, and is as follows:
    “ This agreement made between Thomas B. Jewett, D. Phipps Clark, and Pond, Gilman and Mack, witnesseth, that D. Phipps Clark goes to Porto Rico for the purpose of shipping produce on joint stock account of the parties to this agreement, that is, each one-third. The said Clark is to have wages at the rate of sixty dollars per month, and his expenses in Porto Rico, during the time he is employed under this agreement, which is to be charged to the concern. The said Pond, Gilman and Mack are to charge the customary brokerage on all sales made by them, which is also to be charged to the concern. The said Thomas B. Jewett is to charge the expenses actually incurred by his being in New York, attending to the shipments of said Clark, which is also to be charged to the concern.
    The said Pond, Gilman and Mack, are to furnish a sufficient letter of credit to enable the said Clark to make his purchases, for which no charge is to be made. Neither party-are to charge anything for services, except what is named in this agreement, but all amounts paid by either party for necessary disbursements on the business are to be charged to the concern.”
    In pursuance of such, agreement, the defendant, Clark, went to Porto Rico in January, 1850, and remained there until July or August, of the same year. During that time, he shipped to the plaintiffs, on partnership account, several cargoes consisting principally of sugar and molasses, which were sold by the plaintiffs ; and the plaintiffs and said Jewett shipped to him, during the same time, assorted cargoes of articles likely to be in demand on the island. The plaintiffs made the advances and kept the accounts. The defendant, Clark, returned from Porto Rico in July or August, 1850, and was, from time to time, in New York during that season, and after his return in 1851. At such times he made the office of the plaintiffs his principal stopping place, and had access to the accounts in which he was interested on their books, and sometimes inspected them. It did not appear that he was present when the account was closed, and the balance struck, but he was informed of the result, and of his share of the profits, and never objected to the account, until the present trial. All the parties were satisfied with the result of the business of 1850. The profits, amounting to sixty-two hundred and fifty dollars and twenty-two cents, were divided into three equal parts, which were transferred, upon the books of the plaintiffs, to the private accounts of the parties respectively, viz: one-third to Jewett; one-third to the defendant, Clark; and one third to the profit and loss account of the plaintiffs themselves.
    After the business of 1850 was closed, said Jewett and D. P. Clark, on the 15th of October, 1850, entered into a new partnership, for the purpose of doing a Porto Rico business of a nature similar to that done in 1850, with the house of Dubocq, Garmon & Co., merchants in Ponce, Porto Rico» by an agreement of that date, of which the following is a copy, viz:
    “ Conditions of an agreement entered between Mr. Thomas B. Jewett and Mr. D. Phipps Clark, on the first part, and Mr. J. Dubocq, for his house in Ponce, Porto Rico, Messrs. Dubocq, Gamón & Co., on the second part, to say:

      First. The cargoes sent out to Ponce, Porto Rico, from New York, by the first part, are to be on joint account with the second part, and the interest which the second part represents in said cargoes is to be one-fourth; and the first part will represent three-fourths interest.

      Second. The second part will ship produce, in such quantities as may be deemed advisable by the first part,- and both parties will represent the same interest in shipments of produce from Porto Rico as on the cargoes sent out from New York.

      Third. Neither party to charge any commission or make any charge for services rendered in prosecuting the business, unless for money paid out, except a guaranty commission of two and one-half per cent., which is to be charged by both parties.

      Fowrth. Interest to be charged by both parties at the rate of seven per cent, per annum.
    Signed in duplicate the 15th day of October, 1850.”
    It having been afterwards agreed between the said Jewett, D. P. Clark, and the plaintiffs, that the plaintiffs should become interested therein, but without the assent of Dubocq, Gamón & Co., who were not parties to such new arrangements, the following agreement was made and executed between the said Jewett, D. P. Clark, and the plaintiffs, to wit:
    “ Conditions of an agreement made between Thomas B. Jewett, D. Phipps Clark, and Pond, Gilman & Mack, in reference to the business to be done by them between New York and Ponce, Porto Rico.

      First. All shipments from New York to Ponce, Porto Rico, and all shipments from Ponce, Porto Rico to New York, which are made by Dubocq, Gamón & Co., in pursuance of an agreement between them and T. B. Jewett and D. Phipps Clark, (dated the 15th day of October, 1850,) shall be on joint account, that is, Pond, Gilman & Mack, are to be one-third interested, and T. B. Jewett and D. Phipps Clark are to represent the other two-thirds interest.

      Second. Pond, Gilman & Mack are to furnish the necessary funds and credits for prosecuting the business.

      Third. T. B. Jewett and D. Phipps Clark agree that no commission shall be charged by Dubocq, Gamón & Co., in purchases and sales, except a guaranty commission of two and one-half per cent, on all sales made on time.

      Fourth. Neither party are to make any charge for services rendered in the way of brokerage or commissions, or any other way, except D. Phipps Clark, who is to have wages at the rate of sixty dollars per month, from the date of arrival in Ponce till he has order to commence operations in Mayaguez, and his expenses for the same time.

      Fifth. Interest to be charged at the rate of seven per cent, per annum.

      Sixth. Pond, Gilman & Mack are to charge a guaranty commission of two and a-half per cent on all time sales.
    Signed in New York, in duplicate, on the 27th day of January, 1851.”
    In pursuance of the two last mentioned agreements, the Porto Rico business was carried on between the parties in the same manner as in 1850, except that the cargoes were shipped to and by Dubocq, Gamón & Co., instead of the defendant, Clark. The accounts were kept by the plaintiffs, according to an understanding between the parties, and at the conclusion of the business for the year, the parties, including Dubocq, for the house of Dubocq, Gamón & Co., met at the office of the plaintiffs, for several evenings, for the purpose of examining the accounts. The defendant, Clark, was present at one or more of said meetings. The parties were dissatisfied, because the profits for the year were not as large as in the previous year, although more business had been done; which was owing to necessary expenses incurred for storage and interest. No mistake being found, the accounts were considered as correct. The profits for that year amounted to two thousand and twenty-one dollars and eleven cents, which was carried, on the books of the plaintiffs, to the private accounts of the parties respectively, as follows, to wit:
    One fourth to Dubocq, Gamón & Co., $505.03
    One third to the profit account of the plaintiffs, 673.34 One half of the balance to T. B. Jewett, 420.87
    And one half of the balance to D. P. Clark, 420.87
    Total, 2,020.11
    The defendant, Clark, knew of the result of the business of 1851, and although dissatisfied, like the other partners, with the result of that business, did not object to the correctness of the accounts.
    After the conclusion of the business of 1851, said Jewett, for himself and in behalf of the plaintiffs, repeatedly requested the defendant, Clark, again to engage in a Porto Rico business, in the same manner as he had done before, which he declined, claiming that he was unable to obtain his accounts. Said Jewett also requested him, as a part of such business, to take a cargo to Porto Rico and return with fruit, which he also declined for the same reason, and because he did not think that such a voyage would be profitable. In the mean time, the plaintiffs, Jewett and Dubocq, Gamón & Co., engaged in a fruit voyage, like that which had been proposed to the defendant, Clark, and they also entered into an arrangement with Dubocq, Gamón & Co., for doing a Porto Rico business in 1852, similar to that which had been entered into between said Jewett, D. P. Clark, and Dubocq, Gamón & Co., for 1851. Said Clark remained in this country during the winter of 1851-2, and knew of said fruit voyage, and that the plaintiffs were engaged in a Porto Rico business; although it did not satisfactorily appear that he knew of the co-partnership with Dubocq, Gamón & Co., for the business of 1852.
    On the 17th day of February, 1852, the defendant, Clark, applied to the plaintiffs for his private account with them, which was thereupon rendered to him; another private account was also afterward rendered, by them, to him, which comprised the said account of February 19th, 1852, together with the additional items, which had accrued from the last mentioned date to January 1, 1854. The plaintiffs were always ready and willing to show the defendant, Clark, those accounts on their books, in which he was interested; and he had no difficulty in obtaining, or inspecting, them, at any time.
    In the month of March, 1852, while the plaintiffs, Jewett and Dubocq, Gamón & Co., were engaged in business as above mentioned, said D. P. Clark applied to the plaintiffs, and Jewett, to engage with him in a Porto Rico business, and it was accordingly agreed between them to engage again, upon the same terms as in the agreement between the same parties, for a like business, for 1851, except that the plaintiffs should furnish a letter of credit on Whittemore & Co., a responsible house in St. Thomas, West Indies, to the amount of $20,000, and that D. P. Clark should go to Mayaguez or Arracaibo, on the Island of Porto Rico, with a cargo, and remain there doing business during the crop season. This latter agreement was not reduced to writing. The letter of credit was furnished as agreed, and also a letter of instructions to D. P. Clark.
    In pursuance of such new arrangement, said D. P. Clark sailed from New York on the 18th of March, 1852, in a vessel called the Aconite, with a cargo amounting to $6,301.46, which was purchased by the plaintiffs, and for which they made the necessary advances. Upon his arrival out, he engaged in the business, and purchased and consigned to the plaintiffs, two cargoes of molasses, the net proceeds of which amounted to $13,595.95, and while he remained on the Island, drew on the plaintiffs, through Whittemore & Co., to the amount of $13,550, which they paid. The proceeds of said drafts were applied to the purchase of the said two cargoes of molasses. The cargo of the Aconite being of an unsaleable nature, was sold on long credits. The defendant, Clark, transmitted to Jewett and the plaintiffs a memorandum, or account sales of such cargo,but not the closing account sales, as certain shooks and hoops, part of the cargo, then remained on hand, not disposed of.
    While Clark remained in Porto Rico, in 1852, engaged in business, he corresponded with the plaintiffs and Jewett, as usual. Upon his return to New York, he did not call upon the plaintiffs, or render to them the closing account sales. The plaintiffs, having made enquiry for him, found him, about a month after his return, at the house of his brother in New York, and requested a settlement of the business of 1852. He assigned as a reason for not calling upon them, that he wished to bring them and Jewett to a settlement, but made none with them, upon their request aforesaid. After his return to this country, he loaned out $2,700 of the money which he had brought home, to his brother, Alexander Clark; $800 to Miss Grace Phipps, and the balance he kept to live upon.
    The defendant, Clark, never had any difficulty in obtaining a settlement of his accounts, or- any of them, with the plaintiffs, but he did have a difficulty in obtaining a settlement of his private account with said Jewett, for business done in the fall of 1849, or before that time ; and the committee found, upon the facts aforesaid, that it was his intention, at the time when he sailed in the Aconite, to withhold from the plaintiffs the proceeds of her cargo and of the business of 1852, until he could obtain a settlement of his account with said Jewett, and that the acts, done on his return, were in pursuance of such intention. The committee found, from the account of D. P. Clark of the Porto Eico business. in 1852, that there remained in his hands, belonging to the plaintiffs, on account of such business, exclusive of wages and expenses, the sum of $4,681.89, and he claimed that the sum of $750.90 should be allowed to him for his wages and expenses in 1852. If, however, any wages or expenses are properly chargeable by him under the circumstances aforesaid, there ought to be deducted from the sum, claimed by him therefor, as aforesaid, the item of $42.12, charged for passages and expenses, before sailing in the Aconite; the item of $70.78, which is already charged in his Porto Eico account, 1852; and the further item of $60, for overcharge of one month’s wages, making a total of $172.90, to be deducted from said sum of $750.00 and leaving a balance of $578, to be charged for such wages and expenses, if the same are properly chargeable as aforesaid. If said Clark is not entitled to charge such wages and expenses by law, then there remained in his hands, belonging to the plaintiffs, on account of the business of 1852, the sum of $4,681.89 ; but if he is entitled so to charge, then the sum of $4,103.89.
    The plaintiffs’ account of the Porto Eico business of 1852, shows a balance due to them on said business, the sum of $6,945.05; and in order to show how much loss was sustained on that business, either the said sum of $4,681.89, or the sum of $4,103.89 should be deducted from the said sum of $6,945.05; by which it appears, that if such wages and expenses are not to be allowed to said Clark, then such loss amounts to the sum of $2,263.16, and if the same are to be allowed, then such loss amounts to $2,741.16, and such loss being equally divided between said three parties, amounts in the first instance to $754.38 to each, and in the other, to $913.72 to each.

      In said private account, the sum of $220 is credited to said Clark for one third of his wages and expenses in the business of 1851. By the agreement between D. P. Clark, Jewett and the plaintiffs for that year, said Clark was entitled to charge his wages and expenses. The plaintiffs are right, therefore, in crediting their share of the same, as above stated, being one-third of $660, the whole amount of such wages and expenses. The difference between $660 and $220, equal to $440, is to be borne by Clark, Jewett and Dubocq, Gamón & Co.; but the latter are not, by their agreement, chargeable with any part thereof. If they were so chargeable, their proper share would be one fourth of $660, or $165, which latter sum Clark agreed with Jewett to offset against the right of said Jewett to charge for his expenses, and the same being deducted from $440, equals $275, one half of which is $137.50, is to be borne by Clark, and the other half, or $137.50, by Jewett. The plaintiffs, therefore, upon settlement, should have allowed Clark $137.50, (Jewett’s share,) and charged the same sum to Jewett.
    If said D. P. Clark ought to be allowed his said wages and expenses, he is indebted to the plaintiffs for the funds in his hands, on the Porto Rico account of 1852, in the sum of forty-one hundred and three dollars and eighty-nine cents, with interest thereon, at seven per cent., from the 18th of August, 1852, and for the loss sustained on the same business in the sum of ($913.72,) nine hundred and thirteen dollars and seventy-two cents, with interest at the same rate, from the 9th of September, 1852, less the amount of one hundred and two dollars and forty-five and one half cents, ($102.45^-,) with interest thereon, at the same rate, from January 1st, 1854 ; but'if said D. P. Clark ought not to be allowed such wages and expenses, the committee found that he was indebted to the plaintiffs for the funds in his hands, on the Porto Rico account of 1852, in the sum of forty-six hundred eighty-one dollars and eighty-nine cents, (4,681.89,) with interest thereon, at 7 per cent., from August 18,1852, and for the loss sustained on the same business, in the sum of seven hundred and fifty-four dollars and thirty-eight cents, (754.38,) with interest thereon, at the same rate, from September 9th, 1852, less the sum of ($102.45J) one hundred and two dollars and forty-five and one half cents, with interest thereon, at the same rate from January 1st, 1854.
    The committee also found to be due from said Jewett to the plaintiffs, for his share of the loss on the Porto Rico business of 1852, either the sum of $913.72, or the sum of $754.38, according as the said D. P. Clark shall be allowed his said wages and expenses, or not be allowed the same, as aforesaid.
    The several agreements for the transaction of a Porto Rico business were understood by the respective parties to the same, to be engagements for a single year, or crop season only, and the said D. P. Clark was not entitled to any share of the business done in 1852, between the said Jewett, Dubocq, Gamón & Co., and the plaintiffs.
    After the business of 1852 was closed, the plaintiffs became insolvent, and since the commencement of this suit assigned their claims, described in the bill, to J. B. Brown, of Portland, Maine, in part satisfaction of a bona fide claim in his favor against them, to an amount larger than their said claim against the defendant, Clark. Said Brown appeared on the trial before the committee, by his counsel.
    Against the acceptance of this report, the defendant, Clark, remonstrated, assigning, as grounds for remonstrance among others, 1. That the committee erred, in their construction of the legal effect of the written contracts of co-partnerships, set forth in their report, and consequently erred in their estimate of the remonstrants’ share of the profits, due to him under said contracts. 2. In the allowance of interest, in favor of the plaintiffs, upon the advancements made by them in the course of the co-partnership business. 3. In not admitting said Clark to be a partner in the business, transacted in 1852, between said Jewett, and Dubocq, Gamón & Co.

      The questions of law, arising upon said report and remonstrance, were reserved for the advice of this court.

      lí. 1. Sf G. R. Ingersoll, for the plaintiffs.

      Dutton and Munson and Harrison, for the defendants.
   Ellsworth, J.

One objection to the plaintiffs’ right of recovery is, that, since the commencement of the suit, the plaintiffs have assigned their claim to one Brown. The terms of this assignment are not before us, and we know not whether the assignment is expressed so as to carry along with it this suit and attachment, for the benefit of the assignee, or if the plaintiffs may not still have some resulting, or conditional interest in the suit. This should have been made distinctly to appear, if the point was seriously to be made. The loss of the attachment may be the loss of the debt; for it may be too late to begin another suit, as other attachments may now intervene which will absorb the property. Indeed, the point itself seems scarcely to have attracted attention on the trial, for it is not mentioned in the answer, nor anywhere alluded to, except by the committee, just at the close of the report, where, in the briefest manner possible, they simply mention the fact. Under the circumstances, we may do great injustice to the assignee, who appeared and conducted the suit before the committee, if we yield to this objection at this time, and especially as we are not altogether satisfied that the question is necessarily presented in such a form, as to require us to decide it. It is clear, that the suit was properly commenced in the name of the plaintiffs, for they were then the owners of the claim. If anything has taken place since, which renders further proceedings improper, it should have been brought to the notice of the court by plea, or answer, and then the facts would have been investigated, and no injustice done to the assignee. We will add, if the question had been made when the extent and character of the assignment would have been enquired into, we are not satisfied it' could, after all, avail the defendants; it certainly ought not to, if the contrary was understood by the parties. The general principle, as to parties, is undoubtedly the same in equity, as in law, that proceedings must be in the name of the person having the interest, but there may be some exceptions, at least in the further prosecution of a suit in equity. In Lee v. Jilson, 9 Conn. R., 95, this court held that, at - law, the absolute endorsement, and transfer, of a negotiable note by the payee, after he had brought the suit, and while it was pending, would defeat a recovery; but even then, the judge, who gives the opinion of the court, says ; “ what might be the effect of circumstances attending the assignment, such as an agreement, on the part of the assignee, thatthe suit should be prosecuted in the name of the payee, we do not decide; no such circumstances exist in the case under consideration.” We are inclined to consider the rule to be as laid down in Story’s Eq. PL, § 156; generally speaking, an assignee, pendente lite, need not be made a party to a bill, or be brought before the court, &c., “and it will make no difference whether the assignee, pendente lite, be the claimant of a legal or an equitable interest, or whether he be the assignee of the plaintiffs, or the defendants,” 1 Y. & C. N. R., 230. We see no reason why the bill should be dismissed on this account, and such is the judgment of the court.

It is again objected to the report, that interest is allowed to the plaintiffs, on the accounts, or business, of 1850, for money disbursed in the course of the business. The contract for that year says nothing about interest, it is true, but its language is, “ all accounts paid by either party, for necessary disbursements in the business of the company, are to be charged to the concern.” The business was expected to be done on a letter of credit from the plaintiffs, together with the avails of sales made in New York, as cargoes should arrive from time to time, and be turned into money. The amount of business that year was about $100,000, and the balance of interest in favor of the plaintiffs for money advanced was $1,579.16, which the committee allowed to the plaintiffs. Whatever impropriety, if indeed any, there might have been, in charging interest in the first instance, it was quite too late to make the objection, for the first time, before the committee. The defendants well knew, in 1850 and 1851, that this balance of intérest was charged by the plaintiffs, for the committee found that the defendants, and especially Daniel P. Clark, who makes the objection, were familiar with the manner in which the company accounts were kept, in the books lying open before him ; and what is more important, his own account for 1850, made up with this item of interest in it, and handed to him, was not objected to then, or afterward. If said Clark had any objection, he should have made it at the time, or within a reasonable time after, but not having done so, the account, as rendered, became an account settled. Said Clark likewise took as his share, his one-third of the profits for the year, the whole being $6,250.21, and he cannot now ask to have the account opened. 1 Greenl. Ev., § 197. In Willis v. Jernegan, 2 Atk., 252, Lord Hardwick said, “ if the person, to whom the account is sent, kept the account for any length of time, without making objection, it became a stated account.” So, daily entries in a book, constantly open to the party’s inspection, were admissions against him, of the matters therein stated.” Greenl. Ev., § 197. Butler v. Cornwall Iron Com., 22 Conn. R., 336.

For the reasons assigned for allowing interest on the account of 1850, interest should be allowed for 1851. Besides, the contracts of October 1850, and January 1851, provide for the allowance of interest, at the rate of seven per cent., and so the business of 1852 was conducted upon the same principles and is subject to the same allowance of interest.

Again, it is said, the committee erred, in allowing the plaintiffs one third of the profits on the whole business of 1851, instead of on one-third of three quarters of the business, because Duboeq, Gamón & Co., were to have one quarter as their part. We think the committee were correct. The plaintiffs were not to allow, any part of their one third, because Jewett & Clark had a sub-contract with JDubocq, Gamón & Co., to allow them one quarter for transacting a part of their business in the West Indies. In the contract of the 29th of January, 1851, the plaintiffs are to be interested in “ all shipments to and from New York,” in the proportion of one third each as between themselves and Clark and Jewett.

The committee were correct in not admitting Clark, as a partner in the business of 1852, at Ponce. Clark had refused to engage in that business, and he never had anything to do with it.

The committee were correct in allowing Clark his wages and expenses for 1852, being $578. The services were rendered at a stipulated price, and the expenses arose in the appropriate business of the company, and they are not forfeited by any supposed fraudulent motives of Clark. So we ■think the $220, is properly credited him, for his wages and expenses in the business of 1851, and that he is entitled to have the benefit of the, $137.50, the share which Jewett was to pay, and the benefit of which he agreed Clark should have, in the settlement of the account.

These are the only questions that have been discussed at the bar, and we advise judgment to be rendered upon these points, on the principles expressed.

In this opinion, the other Judges, Storrs and Hinman, concurred.

Decree accordingly.


source: Caselaw Access Project

author: Hinman, J.

license: Public Domain

text:
    Finch vs. Ives.
    A judgment, rendered upon a writ of error, is a final judgment.
    A motion in error, in effect, is like a writ of error, and the former differs from the latter, only in the mode of proceeding.
    The statutory provision, that “ if, upon a writ of error, a judgment is reversed by the superior court, on a principle not inconsistent with the further prosecution of the original action, that action may again be entered in the superior court, and re-tried, (Rev. Stat. tit., ch. 13, § 168,) does not preclude the effectual disposal of the original judgment, by the judgment upon the motion in error.
    The clause in the statute of limitations, which provides that no writ of error shall be brought, for the reversal of any judgment, after the expiration of three years from the time of rendering final judgment, is applicable to motions in error.
    Where the superior court, on a motion in error, reversed a judgment of the county court, and thereupon rendered judgment that the plaintiff in error recover costs on his motion, it was held, that such latter judgment was a final judgment, and that, after the expiration of three years, it could not be reviewed, by motion in error.
    In pursuance of the advice of this court, 22 Conn. R., 101, the superior court, for the county of New Haven, reversed the judgment of the county court, ordering this cause to be erased from the docket, and thereupon rendered judgment in favor of the defendant to recover his costs, taxed at thirty-nine dollars and seven cents. After such judgment of reversal, the plaintiff then entered the action in the docket of said superior court, where it was regularly continued to the term holden in October, 1855, when it was tried and judgment rendered in favor of the defendant. The original plaintiff then, by motion in error, brought his case before this court, claiming to be aggrieved by the judgment of the superior court, in 1855, in rendering judgment against him for costs, on the reversal of the judgment of the county court, more than three years having then elapsed after the rendition of the judgment complained of.

      Doolittle in support of the motion.
    I. The judgment, complained of, is manifestly erroneous, and in direct violation of the statute. Rev. Stat., p. 106.
    II. The statute of limitations does not run against this motion in error for the following reasons. 1. A motion in error does not lie until final judgment has been rendered. Treadway v. Coe, 21 Conn. R., 283. 2. The judgment complained of was not final. The statute, p. 106, declares, in express terms, the judgment thereafter to be rendered to be the final judgment, and hence the whole costs are to be taxed thereafter, in favor of him who shall recover final judgment. Allen v. Adams 17 Conn. R., 69. No final judgment having been rendered within three years, the statute has not begun to run. No statute can run until there is a person to sue and be sued. 2 N. & McC. 259. Miller v. Anderson, Lit. Sel. Cases. Kirby, 36 and 37. Johnson v. Ware, 3 Stew., 172. Houpt v. Shields, 3 Port., 247. Hutchinson v. Tolls, 2 Ala., 44.

      Blackman and C. Ives, contra.
    I. If error was committed in rendering the judgment for costs complained of, no damage has been sustained by the plaintiff, inasmuch as the defendant has since obtained judgment in the trial upon the merits, and it is immaterial whether the defendant pays cost upon the first judgment, or upon the second. A party cannot complain of error which does not operate to his prejudice.
    II. The taxation of costs is not the subject of error. Dutton v. Tracy, 4 Conn. R., 79.
    III. The judgment for costs was a final judgment upon the defendant’s motion|in the error; neither a writ of error, nor a motion in error, (which differs from a writ, only in the service,) can be brought after three years have elapsed. Rev. Stat., 105. Treadway v. Coe, 22 Conn. R., 284. “ A writ of error is a new action.” Ripley v. Morris, 2 Gil., 381. Allen v. The Mayor, &c. of Savannah, 9 Geo., 286. A writ of error has all the elements of an independent case; it has the writ, the service, the pleadings and the judgment.' The judgment, upon the defendant’s motion in error, is no more an interlocutory judgment, than is a decree of a court of chancery, to restrain a party from prosecuting an action at law.
   Hinman, J.

This is a motion in error from the judgment of the superior court. The original action was brought before a justice of the peace, and appealed by the defendánt to the county court. After several continuances, in that court, it was, on motion of the plaintiff, erased from its docket, on the ground that the appeal was irregular. At the October term of the superior court, in 1852, this judgment of the county court was reversed, on the defendant’s motion in error, and, thereupon, judgment was rendered in his favor, to recover costs, on his motion in error. The original action was then entered in the docket of the superior court, for trial, pursuant to the statute, p. 106, Ed. 1854, authorizing such entry, when a judgment is reversed on a principle not inconsistent with the further prosecution of the action. The cause, thus entered, was then continued to the October term 1855, when it was finally heard and determined, on its merits, in favor of the defendant. The original plaintiff now brings his motion in error, before this court, claiming that he is aggrieved, by the judgment of the superior court, in 1852, in rendering judgment against him for costs, on the reversal of the judgment of the county court.

More than three years had elapsed, after the rendition of the judgment complained of, when the present motion in error was filed; and our statute of limitations, Stat. Ed. 1854, p. 649, § 9, enacts, that “ no writ of error shall be brought, for the reversal of any judgment, after the expiration of three years from the time of rendering such judgment.” But the plaintiff'claims that the judgment, rendered in 1852, was not a final, but was an interlocutory judgment, in the original action; and, therefore, as no writ of error, or motion in error will lie, until after final judgment, the statute did not begin to run against his right, until after the final judgment in the cause, in 1855. It is true, undoubtedly, that writs of error, and motions in error, cannot be commenced until after final judgment; because it cannot till then be known, that an interlocutory judgment will prejudice a party; Magill v. Lyman, 6 Conn, R., 59: White v. Trinity Church, 5 Conn. R., 187. It is not claimed that there is any distinction, except in the form of proceeding, between writs of error, and motions in error. Motions in error are more convenient, and less expensive, than writs of error, but the statute, by which they are allowed, provides, that they shall be proceeded with in the same manner. Stat. Ed. 1854, p. 106. They are, in effect, therefore, writs of error, not required to be served on the opposite party, in any other way, than by the mere filing of the motion within twenty-four hours after final judgment, of which the opposite party, being supposed to be present in court, is bound to take notice, at his peril. If, then, judgment' on a writ of error is a final judgment, it follows that judgment on a motion in error must be held to be final. But a writ of error is an action, brought to relieve a party who has been aggrieved by an error, in the foundation, proceeding, judgment, or execution of a suit; Co. Litt., 289, b. It has all the characteristics of an action. It is brought by a writ, the signing and allowance of which is regulated by statute. It is accompanied, as all writs are, in Connecticut, by a declaration setting forth the record, and the error therein complained of. It must be served and returned to court, like any other writ; and there, it is entered in the docket, answered to by plea, and the issue upon it tried, and judgment is rendered upon the issue, like any other action. It is true, that, by statute, if a judgment is reversed, on a principle not inconsistent with the further prosecution of the original action, that action may, on motion, be revived, and retried; and when this is done, it has, in this respect, an effect similar to the effect produced by a petition, or motion for a new trial. But this is superadded, by statute, to its ordinary effect. It no less effectually disposes of the original judgment, because, in some cases, the original action may be revived. Besides, it is not the object of the writ to grant a new trial. That is accomplished by the reversal, or affirmance, of the judgment complained of; and the new trial is a collateral incident of the reversal, provided for by statute, in order to save the expense and delay of another suit, on the same cause of action. The judgment for costs in 1852, on the plaintiff’s motion in error, was, therefore, a final judgment; and being final, it follows, that it is too late now to review it. Besides, this being a motion, and not a writ of error, it ought to have been filed at the October term, 1852. On these grounds, therefore, it must be dismissed.

On the merits of the motion it is not necessary to make a decision. But if there was error in rendering judgment for cost, in 1852, it is quite clear that it can work no injury to the plaintiff now. The defendant, having since obtained final judgment in the original action, by the terms of the statute, is entitled to the costs then taxed, and the costs on that motion will not again be taxed in his favor, unless the former judgment is cancelled.

In this opinion the other Judges, Storrs & Ellsworth, concurred.

Judgment affirmed.


text:
    Ives vs. Carter.
    Where a frand, inthe sale of an interest in a co-partnership, was effected, in part, by means of a promise, (made by the vendor to the purchaser, at the time of the sale,) that if the plaintiff would purchase such interest at a stipulated sum, and “ it should not turn out as represented, that he would make all right;” it was held, that the purchaser might sustain an action, either upon such promise, or for the fraud.
    In an action on the case, by such purchaser, it was held, that the declaration was not objectionable, because it appeared, from it, that the plaintiff was entitled to either of said remedies.
    Where, it was alleged, that relying on the false representations made by the defendant, the plaintiff purchased, and paid $1,500, for such interest, said partnership being then hopelessly insolvent, and indebted to the amount of $18,000, which it was unable to pay, by reason whereof the plaintiff assumed the defendant’s liabilities, as a member of said firm, to said amount, which was to the damage of the plaintiff, in the sum of $10,000 ; it was held, that the declaration was not defective, because it contained no more specific allegations respecting the damages.
    Where such declaration, among other allegations, averred that the defendant falsely represented that N. had offered, and stood ready to give, $1,500 for said interest in said co-partnership, and the court refused to comply with the request of the defendant, to instruct the jury that all the alleged representations, If proved to have been made, were not such as would sustain the plaintiff’s action; it was held that such course was correct.
    The court, having instructed the jury on the trial, that, in estimating the plaintiff’s damages, they might take into consideration his expenses in prosecuting his suit, it was held, that such instruction was correct.
    The rule of damages, adopted by the court in the case of Linsley v. Buslmell, 15 Conn. B., 225, approved.
    This was an action of trespass on the case, tried before the superior court for the county of New Haven, in October, 1855.
    The declaration alleged, that, “ on the 15th day of January, A. D., 1852, the defendant was a member of a co-partnership company, then existing in the village of Plainville, in the town of Farmington, and doing business under the name and firm of Walter Barber & Company, the said defendant owning one quarter of the assets of said company, and being liable to pay one quarter of the debts of said company, so far as said defendants and the other members of said co-partnership were concerned, and being liable to pay all the debts of said co-partnership, so far as the creditors of said co-partnership were concerned; that said company was engaged in manufacturing various articles, principally locks : that said company was then hopelessly insolvent; that ic had sunk and lost its entire capital, amounting to $6,000, and was indebted to the extent of at least eighteen thousand dollars, a large part of which it was unable to pay, all which was well known to the defendant. And the plaintiff says that the defendant, in order to cheat and defraud the plaintiff, and to induce him to buy of the defendant, his, the defendant’s interest in said company, and to take upon himself the defendant’s liabilities, as a member of said company, did then falsely and fraudulently represent to the plaintiff, that he, the defendant, had just examined into the affairs of said company, and that said company were coming out first-rate, and much better than he, the defendant, expected; that said company had cleared over and above its expenses, a sum of not less than five thousand dollars; and that one Neil wanted to buy his, the defendant’s interest in said company, and had just offered him fifteen hundred dollars therefor; that he was only prevented from selling to Neil, by his dislike to lose the profit that had then accumulated in the prosecution of said business; that said Neil had agreed to take said property, and would at any time, take said property and co-partnership interest off the hands of the plaintiff; and that as a further inducement to the plaintiff, and the more certainly to cheat and defraud him, knowing that the plaintiff had for nearly twenty years, from feelings of the purest friendship for the defendant, and without fee or reward, indorsed the notes of the defendant to the amount of many thousand dollars, and furnished him with capital for the purpose of enabling him, the defendant, to carry on business, at times, when the defendant had neither property or credit—he, the defendant did then falsely represent to the plaintiff, that he, the defendant, was in such urgent need of money, that he must then fail unless he had immediately the sum of five hundred dollars in cash ; that if the plaintiff would purchase said co-partnership interest of the defendant, and pay defendant therefor the sum of fifteen hundred dollars, in case the said co-partnership affairs should not turn out as he represented, he, the defendant, would make all right; and the plaintiff says, that relying upon the aforesaid representations of the defendant, and for the purpose of assisting the defendant out of his alleged difficulty, and of maintaining the defendant’s credit and business standing, believing it to be true that defendant would fail unless assisted by the plaintiff in the manner proposed, or in some other way, he did purchase defendant’s interest in said co-partnership company, and did assume all defendant’s liabilities as a member thereof, and did pay the defendant therefor, the sum of fifteen hundred dollars. And the plaintiff says that it was not true that said company was coming out first rate, and much better than defendant expected, or that it had cleared over and above its expenses not less than $5,000 ; or that said Neil wanted to buy said interest and had just offered defendant therefor the sum of $1,500, or that he (Neil) had agreed to purchase said property, and would take said property off the plaintiff’s hands; or that said defendant was then in such a critical condition in his business, that he would have failed if he had not then obtained five hundred dollars; or that defendant was willing to make all right in case the property did not prove as valuable as represented, all which was then well known to the defendant. And the plaintiff says that, by reason of said fraudulent and false representations, he was induced to assume defendant’s said liabilities, as a member of said co-partnership, amounting to the sum of $18,000— all which is to the damage of the plaintiff the sum of ten thousand dollars, to recover which,” &c.
    On the trial upon the general issue, it was admitted that, at the time alleged in the declaration, the defendant was a member of the co-partnership of Walter Barber & Co., who were manufacturers of locks at Plainville; that their capital was $6,000, and the defendant the owner of one-fourth; that at the time alleged, the defendant sold his interest to the plaintiff for the sum of $1,500, and received of the plaintiff payment therefor, in notes and other property, and conveyed the same to the plaintiff by a written instrument of conveyance, absolute in form.
    The plaintiff offered evidence to prove, that during the negotiation, the defendant made the several representations set forth in the declaration; that they were false, and the defendant knew them to be so when he made them, and that he was induced by said representations to make the purchase, and but for them should not have made it; that he did not purchase the interestof the defendant in said company forthe purpose of a business, or as an investment, but because the defendant represented, and he supposed truly, that Neil stood ready to take it for what it was worth when the inventory was completed; and the defendant claimed to be in pressing need of money, and must have it, or fail, and the plaintiff was on his paper; that all the negotiations were predicated on the idea that Neil would take the stock; that it was at the same time understood, that if the matter came out differently from what the defendant expected when the inventory was made, it was to be made right, and the plaintiff was to be made good by the defendant; and if more than $1,700 was realized, the plaintiff was to pay back the excess over that sum to the defendant; and that the difference between $1,500 and $1,700 was a compensation for prior endorsements and services rendered by the plaintiff to the defendant.
    These claims of the plaintiff were denied by the defendant, who offered evidence to prove, and claimed he had proved, that no such representations were made; that he supposed the company to be good, and had every reason to believe they were; and that the sale was an open, honest and absolute one.

      And it was admitted that the defendant had at all times, and when spoken to, or written to by the plaintiff, in relation to an adjustment, insisted that the sale was absolute, unconditional and honest.
    Upon this part of the case, the defendant claimed and requested the court to charge the jury, that if they should find the contract of purchase to be as claimed by the plaintiff, it was not an absolute purchase as to the price and value, but was a conditional contract as to the price and value in which the plaintiff by the express terms of the contract, had” protected himself from loss, irrespective and independent of the truth, or falsity, of the alleged representations, and had his remedy upon the contract and could not recover in this action.
    But the court did not comply with this request, but instructed the jury, that if the contract was a conditional one merely, and the plaintiff, in making the contract, relied upon a promise by the defendant to re-imburse him in the event of loss, and was not induced by the false representations of the defendant to make the contract, then he did not rely on the representations made to him in purchasing the stock, and was not deceived and was not entitled to recover. But on the other hand, whatever the form or nature of the contract, if fraudulent representations were in fact made, and were relied on by the vendee, in making the purchase as claimed, then the action could be maintained.
    The defendant further claimed, and asked the court to charge the jury, that all the alleged representations, as set forth in the declaration, with the exception of the alleged representation “ that said company had cleared over and above its expenses a sum not less than $5000,” if proved to have been made, were not such representations as would sustain the action. The court omitted so to charge the jury, but instructed them as follows. To a certain extent the defendant was rightin this claim, and unless the representations had immediate connection with the subject matter of the bargain, and had relation to the quality and value of the property, they can not form the subject matter or ground of recovery, such as the declaration in relation ' to his want of $500;— which is evidence that you may consider in coming to the conclusion as to other facts, or as to motives, but such declarations, not being connected with the bargain, cannot be the subject matter of recovery in this action, but such as are found immediately connected with the bargain > and that relate to the quality or value of the stock, may be the proper ground of recovery. In order to sustain this action, it must be proved that the defendant has wilfully made representations, in connection with the sale of the stock of Walter Barber & Co., in regard to its quality and value, calculated to induce, and which did induce, the plaintiff to purchase the interest of the defendant, which representations were false when made and were then known to the defendant to be false.
    On this point, the claim of the plaintiff is that the defendant represented that he had enquired into its affairs, which implies knowledge of what the real state of the company was. If the defendant there said that he had enquired into its affairs, the plaintiff had a right to presume that he had some knowledge of the situation of the company. The plaintiff claims that the defendant said that the company was coming out first rate, better than he expected; that it had cleared somewhere between $4000 and $5000; these were representations evidently connected with the quality and value of the stock. If he said I have examined it and have found it prosperous, there are $5000 of profits, the inferrence would be that it was worth that much above its capital. Another allegation is, that Neil would buy it for $1500—that he had offered $1500, and that the defendant did not want to sell it because he would lose his portion of the profits, and that Neil would at any time take it off his hands.
    If you find these representations were made, in my opinion, they form a sufficient substantive ground for recovery.

      It was proved and not denied, that within a few days after the purchase, by the plaintiff, of the defendant’s interest, in said firm of Walter Barber & Co., said firm completed their inventory, by which it appeared that the assets of said company amounted to.....$25,024.04
    Their liabilities, not including capital stock, to 21,627.52
    Showing a surplus of 3,396.52.
    By this it appeared that the defendant’s interest in said firm, as shown by said inventory, was $849.13, or $650.87 less than $1,500. And it was also in evidence shown, that many of the articles were inventoried at a price above their value, for any purpose except continued use in the business, and that this result then and there became known to the plaintiff.
    It was further proved and not denied, that, after the purchase by the plaintiff of the defendant’s interest as aforesaid, and after his knowledge of the result of said inventory, the plaintiff continued the business with the other remaining partners of said firm of Walter Barber & Co., under the same co-partnership name, and so continued from Jan. 8th, 1852, to Sept., 1852, when said firm became insolvent by reason of the defalcation of an agent, and the plaintiff, to relieve himself from his liabilities as partner in said firm, was obliged to pay, and in fact did pay, the sum of $3,000, in addition to his interest in the firm, to be discharged from his liability. And there was no evidence that the plaintiff gave to the defendant any indemnity against, or became obligated to pay the debts of the old firm. And the plaintiff claimed to recover the entire price paid, together with the sum of $3,000, so lost in the business.
    And the defendant, upon this part of the case requested the court to charge the jury, that the defendant could not be held responsible for the losses, which accrued to the plaintiff by reason of his liability as partner in the new firm, nor for the debts of the old firm, for he was under no obligation to assume them, and that if they should find the contract of purchase to have been as claimed by the plaintiff, the rule of damages, under the contract as claimed, must be the difference between $1,500, and $849.13, the amount of the defendant’s interest as determined and found by the inventory, with interest on the same.
    But the court, upon this claim of the defendant, instructed the jury as follows:
    The defendant claims that inasmuch as the plaintiff was not responsible, personally, for the previous debts of the firm, and it was at his election whether he assumed the liabilities or not, the defendant is liable only for the share of the actual deficiency which then existed in the partnership property, which it is claimed is $2,600. I do not know any other rule to apply in this action than to enquire what was the value of the interest at the time of the purchase. It is true the plaintiff was not liable for the previous debts—(the property was liable)—unless he gave an indemnity. It is true the plaintiff might close it and wind up the concern.
    It is claimed, however, on the part of the plaintiff, that he bought the property of the partnership with the understanding that it should continue, and that such was the arrangement.
    I think when he understood that he had been deceived, and that the property was not as represented, if he intended to hold the defendant for any thing more than the difference between the price paid and the actual value of the partnership, as it then stood, he should have taken a different course, and given notice to take back the property on that ground. But, as he elected to go on and met with further losses in consequence of the defalcation of the agent, the true rule is to enquire what was the value of the stock, whether it would have brought any thing in the market, and what would have been the result if the plaintiff had elected to have dissolved the co-partnership, and wound up its affairs; perhaps you can judge from other circumstances what would be the result; you will enquire whether there was any sale of it, and what he could have got for it. If he could have got nothing for it, then you will enquire what it would be worth, considered as an investment, if wound up and the debts paid. If it is worth anything, the rule will be, what was the deficiency over and above what it was then worth. You will find what was the actual value of the interest at the time the plaintiff bought, and the difference between that and the price paid, and you may also take into consideration, the expenses to which the plaintiff has been subjected in the prosecution of this suit.
    The jury returned a verdict for the plaintiff.
    The defendant thereupon filed a motion for a new trial, on the ground of a misdirection, and because the court omitted to charge the jury as requested by him.
    The defendant also moved in arrest of judgment, on the ground of the insufficiency of the declaration.

      N. I 8f T. S. Buell, and Wooster, in support of the motions.
    I. The declaration is insufficient, because, 1. It appears that none of the alleged representations were relied upon by the plaintiff, as to the value or quality of the property sold, inasmuch as the sale, and purchase was consummated upon the contract and agreement of the defendant, that he would make good all differences from the representations. 2. There is no averment in the declaration that the defendant has not made all right, if any thing was wrong; has ever been requested, or has ever refused so to do. 8. There is no averment that the plaintiff has sustained any loss, or damage, by reason of anything alleged in the declaration nor are there any allegations that, by means of the defendant’s representations, he has sustained damage and how or in what manner. This must be alleged and proved, the ad damnum clause is not a sufficient averment. 2 Barb., S. C. R., 525. 4 B. & C., 345. 12 East. R., 632. 23 Conn. R., 86-134. 16 Johns. R., 122. 1 Chit. PL, 397. 6 Taunt. R., 522. 2 Chit. PL, and 2 Sw. Dig., 1 Sw. Dig. 567. 4. The averment that the plaintiff was induced to assume the liabilities of the defendant &c., is not accompanied by any averment that he has ever paid them ; that the assets of the company were not amply sufficient to meet them, or that he has been in anyway damnified thereby. The fact that he was induced to do this, in the absence of all averments to that effect, is no averment of any damage resulting therefrom.
    II. The court erred, in its instructions to the jury, upon the claim of the defendant, that, if the contract, as claimed by the plaintiff", was a conditional one, as to the price in which the plaintiff, by the terms of the contract had protected himself from loss, irrespective and independent of the truth, or falsity, of the alleged representations, he could not recover in this action.
    III. The court erred, in omitting to instruct the jury, as claimed by the defendant, that all the representations alleged in the declaration, with the exception of the following, “that said company had cleared over and above its expenses, a sum not less than $5000,” if proved to have been made, were not such representations as would sustain the action,—and in instructing them, as set forth in the motion. 2 Steph. N. P., 1281. 5 Johns. R., 354.
    IV. The court erred in its instruction to the jury, as to the rule of damages, and in omitting to charge them as requested by the defendant.

      Blackman, and G. Ives, contra.
    1. A good cause of action is sufficiently allegedin the plaintiff’s declaration. “ The telling an untruth, knowing it to be an untruth, with intent to induce a manto alter his condition in consequence, whereby he sustains damage, fulfils all the requisites to support an action of deceit.” 7 Eng. L. & E. R., 585. “ The common law recognizes the broad principle that whoever does any deceit, to the damage of another, is liable to an action.” 1 Sw. Dig., 567. 7 Cranch., '69.
    2. The plaintiff had his election to proceed against the defendant for the fraud, or upon the contract. If contaminated by fraud, the insertion of a condition in a contract does not absolve the wrong doer, or deprive the injured party of his most effective remedy. The contract in this case was so far executed, that the plaintiff had paid the consideration, and parted with $1500 of his money, and it was so far unconditional, that, on the plaintiff’s part, at least, it was executed, and he had been defrauded of his money.
    3. Unless the representations, made by the defendant, had immediate connection with the subject matter of the bargain, and had relation to the quantity and value of the property, we admit that they could not form the subject matter or ground of action, as was said by the judge at the trial. But evidence was clearly admissible to show the quo animo with which the defendant spoke of the value of the property, and falsely stated, among other things, that the company had cleared, over and above its expenses, a sum, not less than $5000. This was not property purchased upon sight and susceptible of examination. Risney v. Selby, Salk., 211. Benton v. Pratt, 2 Wend., 385. Sanford v. Handy, 23 Wend., 260. Gerhard v. Bates, 20 E. L. & Eq. R., 129. West v. Anderson, 9 Conn. R., 107. 2 M. & W., 519. 4 M. & W., 337. 6 Cow., 346. 12 East., 637. 18 Pick., 95.
    4. In actions for redress against fraud, it is not understood that any exact rule of damages has been prescribed in Connecticut, or that our courts have ever limited the jury, in their verdict, to the dollars and cents, fraudulently filched from the innocent party, with six per cent, interest upon that sum, from the time of perpetrating the fraud, but the most charitable rule which the defendant could ask was that prescribed by the judge.
   Hinman, J.

The first question in this case arises on the motion in arrest, for the insufficiency of the declaration. The declaration is claimed to be defective, because it appears from it, that the fraud, or deceit, was in part effected by means of a promise made by the defendant, at the time of the sale, that if the plaintiff would purchase the property at the sum of fifteen hundred dollars, and it should not turn out as he represented, he would make all right. The claim is, that the action should have been upon this promise, and not for the fraud in the sale. The objection is not that the plaintiff was not defrauded, but that, inasmuch as there was connected with the fraud a false and deceitful promise, therefore, the plaintiff must resort to the promise for his remedy.

We know of no principle that requires us to sanction this claim. In a case thus situated, it appears to us, that the party may have his election to sue either upon the contract, or for the fraud; and in either case, so long as it appears that the party is entitled to the remedy he has selected, it can be no objection to the declaration, because it appears from it, that he was also entitled to another remedy.

It is further claimed that there is no sufficient allegation of loss or damage, to justify a recovery. The declaration alleges, that the defendant was the owner of one fourth part of certain partnership property, and a member of the co-partnership; that the copartnership was hopelessly insolvent, having lost its entire capital, and being also indebted to the amount of eighteen thousand dollars, all which was well known to the defendant; and, in order to induce the plaintiff to purchase of him his interest in said copartnership, and property, he represented its affairs to be prosperous, that it had cleared over its expenses not less than $5000; that one Neil wanted to buy his interest, and had offered him $1500 for it, and stood ready at any time to take it off the plaintiff’s hands, if he purchased it;—that he would make all right, if the plaintiff purchased it and it did not turn out as represented. It further appears from the declaration that, relying on these representations, the plaintiff did purchase, and pay $1500 for the defendant’s interest in this copart nership, and its property, by reason whereof he was injured &c. General damages, which are such as the law presumes from the wrong complained of, need not be specially pleaded, because the law presumes them ; and presumptions of law need not be pleaded. Steph. on PL, 354. It is alleged that the copartnership was hopelessly insolvent, having lost its entire capital, and was also indebted to the amount of eighteen thousand dollars; as property, therefore, it was worthless, and the plaintiff has, of course, lost his $1500 which he paid for it. To this extent it seems to be clear that the declaration shows an injury; and as this is more in amount than the verdict gives him, we need not consider whether he could, under the declaration, recover for the liabilities he was afterward induced to incur on account of the debts of the partnership. We think the motion in arrest cannot prevail.

There is also a motion for a new trial, on the ground of error in the charge to the jury. The defendant requested the court to charge the jury, that if the contract was as claimed by the plaintiff, it was a conditional contract as to the price and value of the property, by the terms of which the plaintiff had protected himself from loss, irrespective of any fraud, and, therefore, he could not recover in this action. This has reference to the proof that went in support of that part of the declaration, in which it is alleged that, at the time of the defendant’s making the representations which were claimed to be false and fraudulent, he also stated that, if the plaintiff would purchase his interest in the copartnership, and the property belonging thereto, and it should not turn out as he represented, he would make all right. In substance, therefore, it is the same question which is made in another form, under the motion in arrest, and has been answered in what has been said as to the sufficiency of the declaration. The claim is founded upon the idea that there can be no actionable fraud, as to the quality, or value of property sold, where there is a binding contract, which is sufficient to protect the purchaser against such fraud. As no authority is cited in support of the proposition, and it does not appear to us to be founded in, or supported by, any sound reason, we cannot sanction it. Where fraud has operated to the injury of a party, it does not seem to be a good answer to an action for it, for the defendant to say, that, as he promised to make good any injury resulting from it, therefore he ought not to be sued for it, in the action usually brought for such an injury. In Wallace v. Jarman, 2 Stark., 163, 3 E. C. L., 295. Lord Ellenborough held that the purchaser of a warranted but worthless watch, might maintain an action for the deceit, although there was a stipulation that, if he disliked it, he might exchange it for one of equal value; and there are many cases where a party may sue for fraud, or on a contract.

The court refused to charge the jury, that all the representations set forth in the declaration, except that in respect to the amount which the company had cleared, were not such as would sustain an action. This is complained of. But we think the representation, as to what Neil had offered, and stood ready to give, and take the property off the plaintiff’s hands, if he purchased, was directly calculated to affect the value of the property; Risney v. Selby, Salk., 211. Benton v. Pratt, 2 Wend., 385. And if any one of the other representations is sufficient to support an action, the claim is obviously unfounded.

The court charged the jury that, in estimating the damages, they might take into consideration the plaintiff’s expenses in prosecuting the suit. It is apparent that the rule adopted in Linsley v. Bushnell, 15 Conn. R., 225, sustains this part of the charge; and certainly there is no class of cases to which it can more appropriately be applied, than to cases of actual fraud, by means of false representations in respect to the quality of property sold. Upon the whole, therefore, we advise that the motion in arrest be overruled, and that a new trial be denied.

In this opinion, the other Judges, Stores & Ellsworth, concurred.

New trial not-to be granted.