author: By the Court, Robertson, Ch. J.

text:
    Charles Brink & Otto Mehlen, plaintiffs and respondents, vs. The New Amsterdam Fire Insurance Company, defendants and appellants.
    1. A partnership between the survivor of a prior firm and a third person cannot be established by mere proof of the death of the other member of such firm, and an agreement between him and his partner therein, that, upon his death, such third person should become a partner in such concern, where no new partnership agreement was entered into with such third person, and the capital and every thing belonging to the old firm remained the same. Neither of the supposed members of such new partnership could be made liable, as partners, to each other, or to third persons, on such evidence alone.
    2. In case of a residence abroad of one member of a firm, he is bound, by a submission by the resident partner thereof, to appraisers, of the question of damages to property of such firm by fire, under a condition contained in a policy of insurance, providing for such submission, and also by the appraisement. Such a submission and appraisement are not an arbitration and award, as no action can be maintained upon them alone. The action must be brought on the policy of insurance, and such appraisement is only the determination of an incidental fact.
    3. Even if such appraisement were not binding on the absent partner, it is admissible against the resident partner as to his share of the damage
    (Before Robertson, Ch. J. and Garvin, J.)
    Heard November 12, 1866;
    decided May 14, 1867.

      This was an action to recover the amount of damage by fire to merchandise in a warehouse in New York, either the property of the plaintiffs, or held by them in trust or on commission, or not delivered by them, although sold. It was brought on a policy of insurance executed by the defendants, whereby they agreed to insure “Brink & Mehlen” against loss of such merchandise by fire for three months, (from April 15, 1865, to July 15, following,) and to make good such loss, not exceeding $12,000, to be estimated on the cash value of such goods, and pay the same within sixty days after notice of such fire and proof of such loss, according to certain conditions' annexed to such policy. The whole of such policy was declared therein to be made and accepted in reference to the terms and conditions therein contained and thereto annexed, which were declared to be part of such contract.
    One of the conditions annexed to such policy (11th) declared that, “ in case any difference should arise concerning the amount of any loss or damage, the matter, at the written request of either party,” should “be submitted to the judgment of disinterested arbitrators, mutually chosen, whose award ” should “ be binding on the parties as to such amount, but’’should not decide the liability of the company under such policy. A prior condition, (9th,) also annexed, contained a similar provision as to partial damage to goods, wherein the persons to whom the valuation of the goods and their damage is submitted, are termed “ appraisers,” and their decision an “ appraisal.” The loss is declared therein, among other things, not to be payable, unless the claimant permitted such appraisal. But no mode of submitting such questions, or appointing such arbitrators or appraisers, or in which they may arrive at a decision, is prescribed in such policy.
    Some cigars and chamomile flowers, part of the merchandise insured, were injured in consequence of a fire during the running of such policy.
    The complaint, after sétting out the making of the policy, the copartnership of the plaintiffs, under -the name of Brink & Mehlen, the destruction by the peril insured against of the merchandise in question, the amount of the loss of the plaintiffs thereby, the performance by them of all the conditions of such policy, (including their notice of loss and proof thereof properly certified,) and a demand of payment, asked, as part of the relief sought, payment of a certain sum, which was equal to the amount of damages alleged.
    The answer, put in issue every statement in the complaint not admitted therein, alleging that the merchandise mentioned in the complaint was not destroyed, but only par- . tially injured by the fire in question. It further alleged that a dispute having arisen between the parties as to the amount of loss to the plaintiffs by damage to the cigars in question, they entered into and signed a written agreement, in June, 1865, wherein, such policy of insurance, fire, damage thereby to such cigars, inability to agree upon the amount of such damages, and an agreement to submit such • matter to arbitration, were recited, and whereby, for a sufficient consideration, they agreed that the damages to such cigars, estimated upon their cash value, should be ascertained and appraised by two specified persoihs (Messrs. Deen and Kappes) and by a third person to decide between them in case of their disagreement, to be appointed by them, in writing. “ The decision, appraisement and valuation, in writing, of any two of whom was to be “ final, conclusive and binding ” upon .the parties. It averred that such agreement fully and fairly embodied and contained a previous understanding between the parties, and that the plaintiffs fully knew and understood the contents and effect thereof before signing, and were not induced to sign it by means of any statements or representations made by the defendants, or any deceitful means, practices or representations whatever.
    The answer further alleged, that the persons so named in such agreement (Been and Kappes) differed after notifying the parties of the time and place of their proceeding, and attempting to proceed in the matter submitted, and thereupon, in June, 1865, appointed, in writing, a third person (Mr. Chichester) to decide any differences of opinion between them as to the damages sustained by the plaintiffs on such cigars. Such three persons forthwith notified the parties of a time and place for proceeding upon the matter so submitted, and were attended at that time by the plaintiffs, and proceeded on such matters; and two of them (Been and Chichester) made .a decision, appraisement and valuation in writing, signed by them, of the matters so submitted to them, a copy whereof was annexed to the answer. By which they decided “ that the damages to the said cigars, by reason of said fire, estimated upon the cash value thereof at the time of such fire, was ” a certain sum, ($5679.40,) and they appraised and valued such damages to such cigars, by reason of such fire, at that sum. _
    Such answer further alleged, that the parties agreed upon the amount of damage to the other merchandise injured by fire (chamomile flowers,) as being a certain sum, ($665.30;) and that the proportion of the defendants of the loss on all the merchandise, did not exceed a certain other sum, ($3806.82,) which they have been, and are always, ready and willing to pay. Such answer also set up objections to the proofs of loss furnished; claimed the action to be prematurely brought, and denied that any thing was due at the beginning of the action. The matters contained in such answer were set forth in numbered paragraphs, but it did not claim them as constituting either a defense or a counterclaim, and no demurrer or reply to it.was ever put in.
    The complaint contained many allegations respecting some paper or agreement, which, it averred, one of the plaintiffs (Brink) signed, the date, contents, or purport whereof, were not set forth. It alleged that the defendants, for the purpose and with the intent of deceiving and defrauding the plaintiffs, represented, that such paper was ah agreement to submit to arbitration the question as to the value of each of the different brands of said cigars only; and that the quantities of each of such brands, contained in a previous statement thereof made by the plaintiffs, were to be deemed and taken as correct, and should form the basis for the calculation of the amount of damages, in such a manner that when the price of each of such brands was ascertained by such arbitrators, the amount of damages was to be ascertained by multiplying such quantity by such respective prices; that such representations were the only inducement, and formed the only consideration of the plaintiffs entering into such agreement; that the plaintiff Brink relied upon such representations, and was deceived and defrauded thereby; that he did not understand the English language, and believed that such agreement only submitted the question of the value of “each brand” of cigars, and no copy of such paper was furnished to the plaintiffs; that they were not correctly informed of, and did not know, the contents thereof, until an alleged copy of-the decision of the arbitrators was served upon them, a copy whereof is annexed to the complaint, which is also a copy of the award set out in the answer.
    The complaint further alleged that the plaintiff Brink, relying upon such representations, did, for the purpose of determining the value of each brand of cigars appoint an arbitrator, and that such arbitrator believing himself only appointed to ascertain the value of the-different brands of cigars, consented to the appointment of a third arbitrator, on that understanding only, and therefore, refused to concur in the award.
    The complaint alleged that such award was wrong, because no proof of the amount of cigars was given, the arbitrators had no means of ascertaining the amount, the plaintiffs had notice of the arbitration, and-one of them (Mehlen) did not consent thereto.- It, therefore, prayed that such agreement and award might he set aside as fraudulent and void, and surrendered and canceled.
    The answer denied that either the defendants, or any of their officers made the' representations set forth in the complaint.
    Upon the trial, evidence was introduced on the part of the plaintiffs, without objection, of representations by officers of the defendants, as to the submission set out in the answer, before it was signed, the ignorance of the plaintiff Brink of the English language, and of the contents of such submission, the appointment of an umpire and the proceedings of such arbitrators and umpire. The execution of such submission, appointment, and the award mentioned in the answer, was also proved. But the same being offered in evidence by the counsel for thé defendants, was excluded on the objection of the counsel for the plaintiffs, and such exclusion was excepted to by the former. Evidence was also given.of the loss of the plaintiffs.
    The defendants’ counsel requested the court to submit the question o£ the partnership of the plaintiffs to the jury, which was denied, and an exception taken to such denial; also to instruct them that there was no partnership between the plaintiffs, which was also refused, and an exception taken; also, that the submission of the plaintiff Brink was valid, as against him, which was also refused, and an exception taken.
    The evidence in regard to the partnership and other matters, appears in the opinion of the court.
    The jury found a verdict for the plaintiffs for nearly $9000,- ($8866.25,) on which a judgment was entered, from which the defendants appealed. A motion for a new trial having been made and denied, an appeal was taken from the order denying it, and both appeals were heard together.

      L. B. Marsh, for the appellants, defendants.
    I. The action is one to set aside the submission and award as fraudulent, and to have the same delivered up to be canceled, and thereupon to recover on the policy (not the amount awarded but) the amount of the actual loss, as .claimed by the plaintiffs. The action was, therefore, an equitable action, and should have been tried by a judge sitting in equity, and there was no jurisdiction to try the same before a jury. The trial was, therefore, a mistrial.

    H. The judge erred, in excluding evidence, on the trial, of the submission to arbitration and the appointment of an ■umpire, and of the two awards made thereupon.
    I. A copy of one of these awards was annexed to the complaint, which set forth the submission and award, charging fraud therein. Such submission and award were also set up in the answer.
    2. On the trial the plaintiff (Brink) himself, testified, that he signed the submission without authority from his partner; and also that the submission, which he called an agreement, had been changed since he signed it, pointing out the alleged alterations from the paper itself, put into his hands for that purpose by the plaintiffs’ counsel.
    3. The plaintiff also stated the negotiation between himself and the defendants as to the arbitration, and as to the reason why he did not understand it, to wit, that the witness did not understand English well, and that (Mr. Manners) the defendants’ president, represented it to be an agreement to appoint arbitrators to fix the price of the cigars merely, and not the extent of the loss. The witness then states that the plaintiffs did appoint an arbitrator, but never received any money under the arbitration.
    4. Yet, when we offered the submission and awards in evidence, one of which was the very paper annexed to the plaintiffs' complaint, the court excluded the same, and would not allow them to be read to the jury.
    IH. The judge erred in refusing to submit to the .jury the only question presented by the pleadings, and in issue between the parties.
    1. The question being whether the submission and award were obtained by -fraud on the defendants’ part, or under any misapprehension on the plaintiffs’, evidence on this question, on both sides, was introduced, (a.) The plaintiff, himself, testified that Mr. Manners represented the arbitration was to be only as to price, and that he, the plaintiff Brink, did not understand the English language well. .(5.) The defendants proved, by the cross-examination of'Mr. Brink, as we claim, that he understood the English language well. • At all events, we proved enough to go to the jury on that question, and we also proved by Mr. Manners, thát there was no misrepresentation or misapprehension in relation to the submission, nor any alteration in it after it was signed by Mr. Brink.
    2. But when we asked the court to submit to the jury the question whether this submission to arbitration was obtained in the manner claimed in the complaint, the court declined, although that was- the real question presented as an issue by the pleadings.
    IV. No action could be maintained on this policy in favor of the plaintiffs. They were not the parties entitled to sue thereon. They were bound to make out a joint cause of action, which they did not do.
    1. Brink and Peter Mehlen were in partnership, in this same business, and at this same place, and Peter Mehlen died on the 27th February, 1865. This, of course, dissolved the partnership of Brink Mehlen. Peter left a father, a sister and two brothers, one of whom was the plaintiff, Otto. Of course, then, the father of Peter inherited his interest in the firm, and thereupon he and Brink became, and were the owners of the property, though Brink, as survivor, had a right to close up the affairs of the firm.
    2. There is no proof that the plaintiff, Otto Mehlen, had any interest in this property. Otto Mehlen was never in this country until the 1st of October, 1865, which was after the fire and after the policy, in question would have expired by its own limitation; and the only evidence to show that he had any interest in these goods was the statement of Brink that it was understood between him and Peter, that in case of the death of a partner, his brother should succeed. There, is no evidence that this was carried out by an overt act until Otto Mehlen came here in October, 1865, after the fire; nor, indeed, then. The court should either have dis- ' missed the complaint for that reason, or, at all events, have submitted the question of the plaintiffs’ partnership in these goods to the jury, as we requested.
    3. There was evidence on the part of the defense show- ■ ing, or, at all events, tending to show, that Otto Mehlen was not the partner of Brink, nor interested in these goods. ■
    V. If the court properly excluded the submission and award, and the proceedings thereon, on the ground that the submission was invalid, because signed only by one partner, and that one partnerhas no authority to sign a submission to arbitration, we have several answers.
    1. This is not a ground of objection to the submission and award set up in the complaint; the only ground of objection there taken being, that the submission was procured from the plaintiff Brink by fraud, and was not fully understood by him. The courts will not allow a party to plead one thing and prove another, or avail themselves of another, if incidentally proved. The plaintiff must recover as well on what he alleges as on what he proves. (Brazill v. Isham, 12 N. Y. Rep. 9. McKyring v. Bull, 16 id. 297. Saltus v. Genin, 3 Bosw. 250. Field v. The Mayor, &c. of New York, 6 N. Y. Rep. 179. Bailey v. Ryder, 10 id. 363, 370.)
    2. It is not true, in point of fact, that the plaintiff, Otto Mehlen, had any interest in these goods. We show, in a subsequent point, that Otto Mehlen never came to this country till October, 1865, after the fire occurred, and after the time expired for which the policy was- to run, and that there is no proof whatever that he became the owner of the interest in the assets of the firm which had belonged to his brother, and which descended by inheritance to his father, (a.) The only evidence that Otto Mehlen had any interest in the goods, is the statement of Brink, that there was an understanding between Peter Mehlen and him, that if either died his brother should succeed; but such an understanding was a mere nullity, and did not vest Otto,,on the death of his brother, with the title to his interest. (5.) All the decisions, in which the validity of an agreement for the continuance of the rights of partnership in the representatives of the deceased partner has been sustained, have been where there was an express provision in the original articles of partnership to that effect, which could be ascertained with ordinary diligence by parties contracting with the-surviving partner; not where there was a secret parol agreement, especially a mere understanding, without consideration, between the individuals themselves, which could in no manner be ascertained by third parties, and was used for the express purpose of perpetrating a fraud upon them. (Citing 3 Kent’s Com. 56, 57.)
    3. If, therefore, Brink, as survivor of himself and Peter Mehlen, had a right to insure the goods of the late firm, then, as such survivor, he had a right to compound the loss, or to submit the adjustment of it to arbitration.
    4. But if, on the death of Peter, his brother Otto, became instantly vested with his interest, and thereupon Brink and Otto became owners of the property, of the late firm, still, under the circumstances, the plaintiff Brink had authority to adjust the loss by submission to arbitration.

      (a.) As resident partner (his alleged co-partner being a wow-resident, not being, and never having been in this country,) he had power to sign the submission, although in England, (Coll. on Part. 470,) and also in New York, (Harrington v. Higham, 13 Barb. 660; S. C. 15 id. 525,) it is held that one partner has not power to submit to arbitration, (that is, that though he has power to release a debt under seal, yet he has not to submit to arbitration whether he shall recover the debt or - not,) in other states of the Union it is held that one partner may submit to arbitration by simple agreement. In Pennsylvania, (12 Serg. & R. 243;) Kentucky, (3 Monroe, 436;) and Ohio, ( Wright, 420.) But, where the absence and non-residence of a partner vests in the resident partner the whole management and power of the firm, he should also have power to submit. The doctrine that he cannot submit, is wholly founded on the principle, that there is no implied authority, except so far as is necessary to carry on the business of the firm. (13 Barb. ,662.) The power to submit, existing in the partners residing in the country and carrying on the business, would seem to be an important and necessary one. (See Mabbett v. White, 12 N. Y. Rep. 442, 454, 455, opinion of Denio, J.; Harrison v. Sterry, 5 Cranch, 289, 300; Anderson v. Tompkins, 1 Brook. 456, per Chief Justice Marshall; Deckard v. Case, 5 Watts, 22; Hennessy v. The Western Bank, 6 Watts Serg. 300.)
    The proof and notice of loss having been made out and signed in the name of Brink & Mehlen by Charles Brink, June 19, 1865, three or four months before Otto Mehlen ever saw America, the latter, by bringing this action, founded on such proof, recognized the right of Brink to use the firm name in his absence from the country, and is now estopped from denying the same right to use the firm name in further carrying out the proceedings to obtain the amount of the policy.
    (6.) But, at all events, it is clear that the submission was binding on the plaintiff Brink, who did sign it, and therefore entitled to be read in evidence. (Coll, on Part, § 471. Harrington v. Higham, above cited, 13 Barb. 660. 15 id. 524.) In an action upon the award, the defendants could not set up a want of mutuality or consideration in the agreement of submission, because the binding obligation of it upon the partner signing it is such consideration and mutuality as to make it binding on the defendants. {Id.)

    (c.) But here it was matter of contract that the question should be submitted to arbitration. This was the original agreement between the parties. The. 11th condition annexed to the policy (which is the same thing as if it had been inserted in it) provides that in case differences shall arise concerning the amount of any loss or damage, it shall be submitted to arbitrators whose award shall be binding as to the amount; the question of amount being the only question submitted to them here. The submission, therefore, was by virtue of, and in pursuance' of the policy itself. If Brink had the, power to accept said policy, and thereby make such agreement, then' he must have had the power to carry it out and make the submission; if not, the policy is, of course, not binding on the defendant.

      0. Wehle, for the respondents, plaintiffs.
    1. There is in the case but one exception as to evidence not covered by the request to charge, and that is the refusal of the court to admit Exhibit E, showing the calculations of a witness of the loss of cigars, in evidence, and the ruling of the court in this respect was entirely correct for the following reasons:
    1st. It was wholly in the discretion of the court as to the extent to which to allow a re-examination of a witness as to a point on which he had already testified.
    2d. The evidence, however, was not competent. The preceding examination of the witness showed that no person could form an estimate with any accuracy as to the amount of cigars destroyed by the fire; or estimate with any certainty the amount of cigars then lying either partially or wholly destroyed on the premises. His testimony, therefore, was a mere guess, and as such incompetent. All the facts in regard to the condition of the cigars, were shown by the witness, and the jury were quite as competent to make the calculation as the witness.
    3d. Even if the testimony had been admitted, the court can perceive that it had no effect upon the verdict—the witness had already been allowed to testify to all he knew relative to the -condition of the cigars, and this paper, if admitted, could not have aided the jury in their deliberation ; it was most cumulative. This is apparent from a mere examination of the paper which is in the record. (2 Phillips on Evidence, p. 778. 4 Starkie on Evidence, 1750-1756, 1 id.
      148-150, notes by Sharswood, 8th Am. ed. 231, and eases there cited.)

    H. The court was right in refusing the first request, and excluding the submission and award; since one partner has no power or authority to submit Or refer to ,arbitration any matters whatever, concerning or arising out of the partnership business. (Story on Part. p. 191. Harrington v. Higham, 13 Barb. 660. 15 id. 524. 3 Kent's Com. § 43, p. 49, 4th ed.)

    I. Because it is not within the scope of the ordinary ousiness or the powers or authorities necessary or proper to carry on the business of the partnership, and the award may call upon the partners to do acts which they might not otherwise be compellable to perform. (Gow on Part. ch. 2, § 2, p. 66. Adams v. Bankhart, 1 Crom, Moore & Rose, 681.)
    2. The soundest reason seems to be, that it takes away the subject matter from the ordinary cognizance of the established'courts of justice, which have the best means to investigate the merits of the case by proper legal proofs and testimony, and the means of arbitrators to accomplish the same purposes are very narrow, and often wholly inadequate. It ought not, therefore, to be presumed that the partners mean to waive their ordinary legal rights and remedies, unless there be some special delegation of authority to that effect, either formal or informal, which is not shown to have been the case in this instance. (Bruen v. Marquand, 17 John. 58. 3 Kent's Com. § 43, p. 44, 4th ed.)

    III. The court was right in refusing to charge the other requests, for the following reasons:
    1. The evidence shows conclusively that there was a partnership between the plaintiffs, and that the policy of insurance was issued to them as such partners. Peter Mehlen having died on the 27th day of February, 1865, prior to the issuing the policy on which this action is founded.
    2. The award would be void, whether there was a partnership between the plaintiffs or not. It would be void as to Brink alone, the arbitrators not having proceeded according to law, none of the provisions of the Revised Statutes relating to arbitrators, (3 R. S. 856, 5th ed. §§ 3, 4, 5, 6, 7,) all of which refer to arbitrations upon written submissions, having been complied with. (Bulson v. Lohnes, 29 N. Y. Rep. 291.)
    IV. The defendant did not suffer any injury from the exclusion of the award, inasmuch as the estimate of the arbitrators was permitted to be given in evidence.
    V. The verdict was not against the weight of evidence. The partnership between the plaintiffs is shown to have subsisted at the time the policy was issued; the amount of loss is accurately testified to by the plaintiff, from Ms own knowledge; and his books are in evidence as corroborating Ms statement, which he offered to exhibit to the defendants immediately after the fire. All that the defendants estimated was, the amount of damage to goods not entirely consurned by fire; they did not show the quantity or value of goods wholly destroyed. Hence the plaintiffs’ testimony is really not contradicted, and the court would have been justified in charging the jury to that effect.
    VI. An issue of fact can only arise on a material allegation in the complaint controverted by the answer, (Code, § 250;) if, therefore, the court were right in excluding the award and submission, on the ground of its invalidity or illegality, the other allegations of the complaint averring it to be void, as fraudulent, ■ being immaterial, and no issue arises on them.
    VH. Upon appeal to the general term .the court may treat the pleadings as having been amended, so as to conform to the material facts proven.
    1.’ After judgment such amendments are allowed for the purpose of sustaining it. (Code, § 173. Bowdoin v. Coleman, 3 Abb. 431. Harrower v. Heath, 19 Barb. 331. Englis v. Furniss, 3 Abb. 82. Cayuga Co. Bank v. Warden, 6 N. Y. Rep. 19. Bate v. Graham, 11 id. 237. Hall v. Gould, 13 id. 127.)

      2. In the last mentioned case the Court of Appeals upheld an amendment,' whereby an entirely new cause of action was substituted in place of the one alleged; while in the case at bar nothing was to be done except to strike out a cause of action which had become immaterial and irrelevant; for if the court rightly treated the submission and award as invalid, it would have been a work of supererogation to decide whether they were obtained by fraud or not.
    VIII. There is no allegation in the pleadings, nor any proofs that the submission was had in pursuance of the condition of the policy.
    1. The policy, as averred in the complaint and as admitted by the answer, does not make it incumbent upon the plaintiffs to submit any matter to arbitration,, and the court will not allow a party to allege one thing and prove another, or avail himself of another, if incidentally proved. (See authorities cited in the 5th point.)

    2. Even if section 11 of the policy could be considered as properly proven, it is certainly not shown that the arbitration was had under that section.
    3. It appears affirmatively that no “written request ” was made by either party. The defendant’s president is asked, distinctly, what took place between him and the plaintiffs on that subject, and it appears from his answers that no written request was made, and that nothing was said to indicate that the proposed arbitration should be had in pursuance of section 11 of the policy.
    4. The submission which was made was entirely different from that provided for in section 11 of the policy.- The submission actually signed was one between Brink and three insurance companies, while the policy only mentioned a submission between the plaintiffs and the defendants alone; the actual submission states that the decision of two of the arbitrators shall be binding, while section 11 of the policy would require the concurrence of all the arbitrators to the award.
    5. The fact that a submission was had in writing, ought-to be taken as conclusive proof that it was not a submission under section 11 of the policy; for if the appellants’ view of that section be correct, no written agreement about the arbitration was required.
    IX. The arbitration in this case comes clearly within the provisions of the Revised Statutes, as it relates to a controversy between the parties as to the amount of loss by fire. The liability to pay the loss not being disputed by the defendants at the time of the submission, there was but one point of controversy between them, and that was submitted. (3 Black. Com. 16. 3 Steph. Com. 374. Billing on Awards, 3.)
    There is no authority for holding that an award must be of such a nature, that, in an action to enforce it, no allegation or proof of any extrinsic fact is admissible; hence' the court was right in excluding the submission and award. (29 N. Y. Rep. 291.)
    X. The demand for relief in this case is entirely immaterial. Even if no answer had been interposed, the plaintiffs might have obtained a judgment for the money demand, and an answer having been.put in, the whole matter was in the discretion of the court. (Code, § 275. Marquat v. Marquat, 2 Kern. 336.)
    XI. The appellants having assented to a trial by jury, they have waived the equitable issue, if any there was. (Greason v. Keteltas, 17 N. Y. Rep. 491. See Phillips v. Gorham, id. 270.)
    XII. The court was right in refusing to charge the last request to submit to the jury the question whether the charges of fraud have been made out by the evidence’’. The allegation of fraud was immaterial under the ruling of the court, in excluding the award on the ground of invalidity, and hence there really was no issue on this point for the jury to determine.
    XIII. The court was right in its refusal to submit the question of partnership to the jury. The plaintiffs and- defendants both showed the existence of the partnership, and there was no evidence in the case to contradict it. A parol understanding between the parties would have been sufficient to make them partners; but they became actual partners, by dividing the profits between themselves, under their partnership agreement, and the policy of insurance was issued to them as such partners.
   By the Court, Robertson, Ch. J.

The sole, question which I deem necessary to consider in this case is, the propriety of the exclusion of the appointment of two appraisers of the extent of the loss of the plaintiffs, by the damage to their cigars by the fire mentioned in the pleadings, their appointment of a third, and the appraisal by the three. This was undoubtedly based entirely upon the failure of one of the plaintiffs to sign such appointment, and the idea that so unsigned it was void because they were partners.

I cannot perceive that the fact of such partnership was so clearly made out as to have entitled the court to withdraw from the jury all consideration of the evidence, and pronounce as matter of law that it was. The only witness on the subject was the plaintiff Brink. He testified that the firm of “Brink & Mehlen’’had formerly been composed of himself and Peter Mehlen, who died in February, 1865. That at the time of his death there was a subsisting agreement between them, that upon such death, the plaintiff, Otto Mehlen, who was a brother of Peter Mehlen, together with a brother of the other plaintiff, who was not a party to this action, should become partners in such concern, under which each should divide the profits.. But that no partnership articles were ever executed by the plaintiffs. The capital remained as it was before the dissolution of the firm by the death of Peter Mehlen. Besides the plaintiff Mehlen, the deceased had, as surviving relatives, a father, sister and brother. Ho administrator was appointed of his estate. The parties were changed in no respect. Every thing continued just the same, since before the first firm was formed, in June, 1863, the plaintiffs never met until October, after the fire. This is all the evidence on the subject, except as to a division of profits, which I do not regard as speaking of a fact, but of the agreement with Peter Mehlen. There was none, that the plaintiff Mehlen ever became a party to his-brother’s agreement, or made a new one; or that he ever agreed to become liable for the losses, or became entitled to a share of the profits. ISTo action could have been maintained by third persons upon such evidence against both the plaintiffs, or by either against the other. There was certainly, therefore, no conclusive evidence of .partnership between the plaintiffs.

The answer admits that a policy was issued to the plaintiffs, but this would only give them a right of action in their joint names, and could not affect the power of the parties really interested in the loss, to submit the question of the amount to arbitration.

' But it will not be necessary to controvert any principle established in regard to the power of partners to bind each other by submissions to arbitration, in order to establish-the admissibility of the appointments of appraisers in this case as well as their award as evidence, even if the plaintiffs were partners. Such appointments and award are not pleaded in bar or as a defense to the action of the plaintiffs; if they had been, they might have been conclusive, because no reply was put in to them: if or are they the subject of an action to make the absent partner liable for any thing. They simply operate to render the contract of the defendants to pay uncertain damages certain, by liquidating them, and thereby reduce the amount claimed by. the plaintiffs. They were made pursuant to the very contract on which the plaintiffs bring their action, and upon which, and not on the award, even if they had adopted it, they would still have been obliged to bring such action.

The reasons adduced, in all elementary works, and sanctioned' by courts, against the power of one partner to bind another by submission to arbitration are said to be two fold; first, because such power does not come within the scope of the. ordinary business of a partnership, or the authority necessary to be vested in each partner to carry it on, and in the next place, because the award might compel a partner to do what otherwise he would not be bound to perform. (Story on Part. 191. Gow on Part. ch. 2, § 2, p. 66. Coll. on Part. 470. 3 Kent’s Com. 4th ed. 44. Adams v. Bankhart, 1 Cr. Mo. & Rosc. 68. Harrington v. Higham, 13 Barb. 660. S. C. 15 id. 426.) To these has been added a third, by way of suggestion, by Justice Story, in his work on partnership, (191,) in which he is followed in Kent’s Commentaries, (ubi supra,) to wit, that the means whereby established courts of justice investigate the merits of a case, by proper legal proofs and testimony, being much better • than those of arbitrators, which he assumes to be very narrow, and often wholly inadequate, it is not to be presumed that partners mean to waive their right to ordinary legal remedies, unless by some special delegation of authority to that effect, however informal. Neither of the first two reasons, even if they are distinct ones, would be applicable to the submission to arbitration of an amount due to partners. For the compromise of debts' is within partnership authority, and must include the'lesser power of submitting them to the decision of others. By such arbitration no liability could be imposed on the party not signing; all the decided cases upon this point relate only to actions against partners, on an award, for positive relief. As to the third reason, if it be consistent with the favor shown to arbitrations and awards, (Munro v. Alaire 2 Cai. 320,) it would not apply where by the very instrument out of which the partnership claim arises, it is provided that such claim shall not be payable until a dispute respecting it has been submitted to arbitrators. That is surely as good as a ratification would be. (Mackay v. Bloodgood, 9 John. 285.) But there is a saving clause even in the statement of such reason, to wit, that even an informal delegation of special authority is sufficient, and surely the terms of the instrument must he considered as such. If insuring be part of the partnership business, the power of insuring in the city of New York, so as to subject claims under a policy to appraisers, must be part of it also, as no policy is issued without such a provision, and I apprehend but few insurances would be affected, if by reason of one partner residing abroad, such submissions could not be made.

But beyond all this, the submission and appraisement in this case was not a determination of the final rights of the parties; an arbitration and award, upon which alone an action could be brought. It was a mere reference of a collateral fact, to wit, the extent of the damage, a distinction fully recognized in Elmendorf v. Harris, (5 Wend. 521, per Savage, ch. J. and note at end of case, p. 522;) Garr v. Gomez, (9 id. 649, 661;) and Harris v. Bradshaw, (18 John. 26.) The mode of submitting the liability of the defendants to ordinary courts was not changed. There is scarcely a day in which, in commercial transactions, the valuation of property of estimate of damages is not entrusted to third parties, and no one has yet dreamed of looking upon them as arbitrations, and subjected to all the formalities imposed on them by the Revised Statutes, (2 R. S. 541, §§ 1-25; Bulson v. Lohnes, 29 N. Y. Rep. 291;) with the paraphernalia of oaths, witnesses and notices of trial. It is most. frequently confided to the personal skill, knowledge or experience, or even acquired information of appraisers, and even in case of a statutory delegation of authority as between the public and individuals, (Matter of John and Cherry streets, 19 Wend. 659,) they may rely on their personal inspection and appraisal.

But even if such appraisal was not binding on the plaintiff Mehlen, it was admissible as against his co-plaintiff, as to his share of the damages. That limitation and effect is conceded in all the cases. The plaintiff Brink had power to bind that share, and did it. (Harrington v. Higham, 15 Barb. 426.) As there is no evidence as to his share of the profits of the firm, the verdict cannot be modified, and there must be a new trial.

Judgment and order reversed, and a new trial granted, with costs to abide the event.


source: Caselaw Access Project

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text:
    Henrietta Schmidt, plaintiff and respondent, vs. Emil Herfurth, defendant and appellant.
    1. What is sufficient evidence to go to the jury of the ignorance of the plaintiff of - the nature of a general release under seal, set up in the answer, and of her belief that she was merely signing a receipt for a specified sum, upon a return pro tanto of a loan she had made.
    2. Even if mere ignorance of, or mistake as to, the contents of an instrument, by a party executing it, however much such ignorance or mistake may be the result of his or her own negligence or willful conduct, and even, although he or she has received a valuable consideration for executing it, be sufficient to invalidate it; the circumstances preceding or attending such execntion must be such as would have induced .a person of ordinary intelligence to infer that it was of the nature supposed, even if some misrepresentation or misconduct of the other party be not also necessary.
    3. It would be monstrous to invalidate instruments upon the mere oaths of the parties executing them that they did not know what they contained, or that they believed them to be something else than they really were, without a reasonable or plausible ground for such belief, particularly if they omitted, at the time, to disclose their ignorance, or otherwise left the party benefited by such instrument, unaware of such ignorance or mistake. Per Robertson, Ch. J. '

      4. The testimony of a plaintiff that she supposed an instrument, signed by her, was a mere receipt for one half the amount of a loan, will not be sufficient to warrant the verdict of a jury in opposition to the terms of such instrument itself, unless she had some reasonable grounds for such supposition. It must be presumed that she could not have had such ground, if the facts known to her at the time of signing—there being no fraud or undue influence—were such as to have prevented any person of ordinary intelligence from supposing that such document was merely such receipt.
    6. It would be unjust to allow a party to escape the obligation of an instrument executed by her, for which she had received ’ a consideration, by merely swearing to her supposition that it was an instrument of a different kind) where such belief was inconsistent with previous occurrences within her own knowledge, contrary to the evidence of her senses, and not encouraged by- any thing said or done at the time of such execution, when, to arrive at it, she must have supposed that the other party was more anxious to pay a demand for which he was not pressed, than one for which he was; that her counsel had drawn an instrument, which she had not directed him to prepare, in place of one that she had; that a mere receipt for money could be three or four pages long, and needed counsel to prepare it with deliberation, and when she knew the length of the paper, so executed by her, was owing fe> that of another paper on which it was based, which she had every reason to believe ” was a general release of all claims, such as that so executed by her.
    6. The testimony of neither of two witnesses to the value of a denomination of foreign money, at a certain time, in United States currency, is admissible in evidence as that of experts, where one testified that he was in Europe at that time; that he had bought hills of exchange in that money; that he could not tell precisely its value then in American currency, but that it depended on the value of gold, which he only knew from reading American newspapers abroad; and the other stated that he was a soldier in the United" States army at that time, but was a broker at the time of the trial, and did not state any means of knowledge of such value.
    7. In an action to recover the value of money lent, it is not erroneous to ask the plaintiff, when examined as a witness in her own behalf, if she is the wife of the defendant. For, if so, she cannot be sworn as a witness- against him; and the defendant does not waive the objection to the plaintiff’s competency • by allowing her to be examined in chief,
    8. A plaintiff's statement, in her complaint in a former action, of her marriage to the defendant, in a subsequent suit, is proper evidence to show her incompetency as a witness in the latter suit.
    (Before Robebtson, Oh. J. and Babboub and Monelb, JJ.)
    Heard April 13, 1867;
    decided May —, 1867.
    This was an action brought to recover the value of certain Prussian thalers, claimed in the complaint to have been lent by the plaintiff on the 7th of July, 1863, to the defendant, in the city of New York, and alleged therein to be worth $5250. The-answer denied every allegation in the' complaint, and set up, as a defense, a general release, under seal, executed by the plaintiff to the defendant, of" which a copy was annexed.
    The issues of fact therein were tried before Justice Bar- . bour and a jury, in November, 1866. On the trial the plaintiff, being examined as a witness on her own behalf, testified that she had two names, (Schmidt and Herfurth.) That she arrived in this country on the 24th of June, 1863, and on the following- 7th of July lent the defendant one hundred Prussian treasury notes for fifty thalers each, of which he returned 2500 thalers on the 7th of March, 1864. Nobody else was present at the loan, and no receipt or voucher was taken therefor. She demanded back the sum lent in March, April and May, 1864.
    The plaintiff’s signature to an instrument in the German language was proved, of which a translation- was annexed, to the answer, and is as follows:

      “ All whom it may concern, know by these presents, that I, the undersigned, Henrietta Schmidt, of the city of New York, have received of Emil Herfurth, of the same place, the sum of two thousand five hundred dollar’s, money of the United States, by cash, at the date hereof; and hereby expressly and formally acknowledge the receipt of said sum, and release him from the payment of the same.
    Further, I declare for myself, my heirs, executors, and administrators, that, in consideration of the said sum of two thousand five hundred dollars, I have formally, irrevocably, and forever, released and discharged, and hereby do release and discharge formally, irrevocably, and forever, the said Emil Herfurth, his heirs, executors and administrators, of and from all obligations, agreements, contracts, covenants, and promises of every kind concerning any act or object, or originating from any cause whatsoever, and which he may have incurred to me.
    And I therefore renounce, irrevocably, formally, and forever, for myself as well as my heirs, my executors and administrators, all rights, demands and claims which I had, have, or may have against said Emil Herfurth, and which arose or originated, or may have arisen or originated out of any agreement, act, promise, or affair or relation existing between me and said Emil Herfurth, and all the causes of ' action and consequences resulting therefrom, from the beginning of the world to the present day.
    I further renounce the fulfillment of any promise which was ever made by the said Emil Herfurth, to enter with me into marital relations, and hereby expressly renounce it in all due form, and bind myself never to commence any suit for that purpose against the said Emil Herfurth, or to appear against him as plaintiff in any court of justice or tribunal, in any country or state, by reason of any relation that may have existed between me and him, or to make any one else appear for me.
    I hereby further declare, expressly, that the foregoing document is an absolute and final answer, and full and final bar against all suits against the said Emil Herfurth, and it shall be so considered by every court, court of justice and tribunal.
    In witness whereof, I have subscribed this document with my own hand, and affixed a seal to it, on the 7th day of March, 1864.
    Henrietta Schmidt, [seal.] Signed, sealed and delivered in the presence of
    J. P. Legare.”
    This instrument was in the hand writing of a former counsel for the plaintiff, (S. Hirsch, Esq.) and the signature and death of the subscribing witness to it, (Legare,) were proved.
    The plaintiff called on such counsel, (Hirsch,) on the Saturday (March 5) before the day on which such instrument was signed, (Monday, March 7, 1864.) She was introduced to him by a friend, to whom she had told her trouble, to wit, that the defendant was about to leave her. She was then seven months advanced in pregnancy, and living with the defendant. Such counsel called on the defendant, in consequence of such application of the plaintiff, and stated to him the-object of the claim, on her part, as being a breach of promise of marriage. He went, in company with the plaintiff, to the defendant’s office, and there quitted her, in order to. speak to him. After some conversation between the two, she approached, and her counsel communicated to her a proposition which the defendant had made, to pay her $2500 in satisfaction of this breach of promise claim. Some question then arose as to the ¿ustody of the child with which the plaintiff was then supposed to be pregnant, and she claimed it under all circumstances. Finally the defendant expressed his willingness that she should have it until the child was seven years old. A paper, previously drawn by the defendant’s counsel, (Mr. Stemler,) in English, was then handed to the plaintiff’s „ counsel, and he was requested, by both parties, to draw it in German. He also drew up a paper in German, which the defendant signed at his store, and it was given to the plaintiff, either on that Saturday or on the following Monday, when the release was executed. Her counsel read it to her, (as he thought.)' The following is a translation of it.
    “I, the undersigned, Emil Herfurth, of the-city of New York, in consideration of a general release, executed this day to me by Henrietta Schmidt, and in consideration of the sum of one dollar, duly paid to me by said Henrietta Schmidt, the receipt whereof is hereby acknowledged, hereby agree to maintain and take care of the child with which the said Henrietta Schmidt is now pregnant, if the same shall be born alive, and live until it has reached the age of seven years.
    Done at said city of New York, and confirmed by my signature and seal, this 7th day of March, 1864.
    Emil Hereurth. [l. s.] ,
    Witness: P. J. Legare.”
    At such interview no other claim was mentioned as existing between the parties, except the breach of promise and the child..' Hothing was said about any remaining 2500 thalers. The plaintiff’s counsel drew the release ‘ ultimately executed, partly from the paper prepared by the defendant’s counsel, and partly from instructions given by both parties in each other’s presence, according to what he understood to be' their understanding, and he was paid for drawing it by the plaintiff’.
    The plaintiff testified that she took such agreement as to the child, merely because it was given to her, but did not know its contents, or for what it was given, and never read it, because she was continually sick. The evening before the release was executed, the defendant told her to sign the paper the next day and he would give her one half of the 5000 thalers, and two months after, he would give her the other half, and that such paper was a mere receipt for the money. The evening previous to that (being Saturday) he had taken her to his counsel (Mr. Stemler) and wanted her to sign the paper drawn by the latter, which she had refused. She believed what the defendant told her, that the release signed by her “ contained ” a receipt for 2500 thalers of the money she had given him. She only saw the upper half of the last page of .such release, when she signed it, but no time was given her to see what was in it. Her counsel said he was in a great hurry'to go to court; told her to sign it, it was all good, and the defendant would advise her of the contents. The defendant had often asked her before, if she was satisfied that he should separate himself from her, if he gave her back that money. He said nothing in presence of her counsel. The plaintiff asked her counsel to read such release to her, but he said it was too long; the defendant had brought him a paper which was very long, and he had not time, and the defendant would advise her of it. Ho one told her what the paper contained. The defendant had told the plaintiff that he would treat her badly if she did not sign that paper; that he would leave her and cheat her; that he would maltreat her, until she signed it. She signed it to prevent the plaintiff from leaving her. He tormented her day and night, and she was in a very distracted state, and did not know what she was doing.
    The defendant testified that he read to the plaintiff, the day before she signed the release, the paper drawn by his counsel (Stemler) for him, before he gave it to her counsel, (Hirsch,) which was not contradicted.
    The defendant ceased to live with the plaintiff after the execution of the two before mentioned instruments, but not quite two months afterward returned to live with her again. She then asked him where the paper was, which she had signed. He said he had burned it; that it was a scandal to cany with him. After that, she asked him for the other 2500 thalers, and he said he had no money, and could not give her any. There was no evidence that he subsequently promised to pay any thing. This action was begun in July, 1865.
    The parties had known each other about twelve years, the acquaintance having commenced in Germany. The defendant came to this country in January, 1863, the plain- • tiff accompanying him part of the way in a railway carriage from Leipsic to Magdeburg. She. was then a widow. She arrived in this country on the 24th of June, 1863. Before July following, she called on the defendant at his place of business, became his mistress shortly after, and continued so until March, 1864, when the release in question was executed, and the parties separated.
    The learned judge, before whom the cause was tried, instructed the jury to disregard the release as applicable to any portion of the claim, if they found that “ it was signed by the plaintiff without knowing what it was, and under the supposition that she was receipting for 2500 thalers upon'a return pro tanto of the loan she had made; that she supposed she was simply signing a receipt for the money.” He also informed them that the plaintiff had said “ she frequently requested the defendant to pay the remaining 2500 thalers of the loan, in March, April and May, and he promised to pay it, * * after the execution of the release. If they believed her, it would, “ probably, satisfy them that neither of the parties considered the release as embracing the lent money.”
    Various exceptions were taken on behalf of the defendant, to the admission and exclusion of evidence. Under such exceptions the following questions to the plaintiff were excluded:
    Did you commence a suit against the defendant in January, 1865, for breach of promise of marriage? Did you commence a suit in January, 1865, for 2500 thalers ? Did you commence a suit in July, 1865, for 5250 thalers ? Are you the wife of the defendant ?
    Under such exceptions, the following questions were admitted :
    Did you visit the plaintiff in her bed-room ? Did you live with her in Broome street ?
    Under like exception a complaint in an action in which the plaintiff swore she was married to the defendant, and the complaint in the present action, after the counsel for the defendant had begun to sum up, were excluded.
    Two witnesses gave evidence, under like exception, of the value of a Prussian thaler in July, 1863, in United States currency, (Stalknecht and Ternow.) The first testified that he was in Europe at that time; that he had bought bills of exchange in Prussian thalers, but couldn’t tell precisely their value in July, 1863, in American currency; it depended on the value of gold; and he testified to the value of gold from knowledge of it obtained by reading American newspapers abroad. The other (Ternow) testified he was a soldier in the United States army in July, 1863, but was a broker at the time of the trial. But he also was permitted to testify as to such value under like exception.
    No evidence was given of the value of the Prussian thaler in March, 1864. .
    The j ary found a verdict for the plaintiff for nearly §3000 (§2966.99.)
    A motion was made for a new trial founded on the judge’s minutes, and such new trial was denied. An appeal was taken from the order denying such new trial, as well as from the judgment, a case containing exceptions having been made.
    Both appeals were heard together. •

      M. V. B. Wilcoxson, for the appellant.
    I. The proof of the alleged loan rested entirely on the uncorroborated statement of the plaintiff herself, absolutely denied by the defendant. The only safe rule of evidence, applicable to such a case, is to consider the claim unproven. It is a rule, well recognized, that the unsupported testimony of any person, on his own behalf, cannot be safely acted on. (Grant v. Grant, 11 Jurist, N. S. 787. 34 Law Jour. Chanc. 641.)
    II. The same observation is proper in relation to the release. It was a full release, fairly proven, and no evidence whatever was introduced to invalidate it, except the uncorroborated assertion of the plaintiff that the contents of it were.misrepresented to her, although, in this respect, she was contradicted by the evidence of her own lawyer, (Mr. Hirsch.) '
    TTT. Hot only was the plaintiff’s claim created by the naked verbal assertion of it, by her testifying in her own behalf, despite the denial of it by the defendant, but an instrument, solemnly signed and sealed by the plaintiff, under the supervision of her own lawyer, was peremptorily set aside, upon the mere assertion of the plaintiff, again testifying in her own behalf, that it was not what she intended to sign.
    IV". The defendant, under the circumstances of this case, resting, as it did, on the plaintiff’s testimony alone, given in her own behalf, was entitled to a wide latitude in her .cross-examination. It was eminently a case for the exercise of the liberal discretion of the court, in that respect, to the fullest "extent. But, at the very outset of the cross-examination, the defendant was rigidly restricted. 1. The plaintiff, at the time of her cross-examination, had pending against the defendant six suits, in which she had sworn to complaints, the statements in which were totally inconsistent with each other. In one of them she claimed to be his wife, and that he had converted $5000 of her money to his own use. In another she claimed damages for a breach of promise of marriage. In one she claimed that the defendant owed her 2500 German thalers. In another that he owed her $5250, while in this suit she claimed he owed her 5000 Prussian thalers. If liberty of cross-examination had been allowed, so as to elicit from the plaintiff all these facts, which was prohibited, the plaintiff" would have involved herself in such inconsistent and conflicting statements, as to her relations with the defendant, and as to the moneys she claimed to have loaned him, that the jury could not, however much they might' have sympathized with her, have refused to discredit her testimony. (La Beau v. The People, 34 N. Y. Rep. 234.) 2. Even if all the questions mentioned had been, as they were not, strictly speaking, irrelevant to the issue, and therefore resting, as to their admission or rejection, in the discretion of the judge who presided over the trial of the cause, and nothing but a plain abuse of that discretion were the subject of review here, a careful scrutiny of the whole case will show that the learned judge’s discretion was exercised against us.
    V. The excluded questions mentioned were strictly relevant to the issue. It was relevant to the issue raised, to be decided solely upon the contradictory testimony of the two parties to the suit, to prove, out of the mouth of one of the parties, on cross-examination, that at the same time, as Henrietta Schmidt, she claimed a loan to the defendant, she claimed, as Henrietta Herfui’th, marriage with the defendant, and the rights of alimony; that, at the same time she was claiming, in one breath, that her loan to him was 5000 thalers, in another that it was $2500, and in a third that it was $5250. It may be said that these claims were all consistent with each other; but our ground of complaint is, that we are not allowed the opportunity to prove, out" of the plaintiff’s own mouth, on cross-examination, if we could, that they were not consistent with each other, and that her testimony was, consequently, wholly unreliable.

      ■ VI. The various questions, as to marital suits, and as to an alleged marriage, would, if admitted and answered in the affirmative, have shown that the plaintiff had no right to bring the suit under the name of Henrietta Schmidt, or to testify in her own behalf in a cause against her own alleged husband. It would have been proper, and according to the rule and practice of the courts, to have allowed this evidence to come out on cross-examination of the plaintiff herself. She was bound not to be surprised by any evidence that she gave herself, in making out her own case, or which was elicited from her on cross-examination, and the court below erred in the rejection of these inquiries.
    VH. We were aggrieved and injured with the jury, by the charge of the learned judge, as to matters of fact, where are to be found observations not sustained or warranted by, but contradictory to, the evidence in the case.
    VIII. The exclusion of the question, whether the plaintiff went before an officer, to acknowledge the release, the same day, was clear error, and very injurious to us. One of the issues in the case was as to the validity of that paper. The plaintiff’ asserted she had been deceived into signing and executing it. The original instrument shows that the same day she executed it, she also went before Mr. Talmadge, (late clerk of the Court of Appeals,) and solemnly acknowledged' it to he -her free act and deed. Our inquiry was addressed in order to show, by her own testimony, that she had done so, and that she knew what she was doing. We should have had a variety of questions to put to her on this point, which might have shown, conclusively, that she did know what she had done when she signed it; but the court checked us at the very threshold of the most important inquiries -in the case, whether the plaintiff had not done such acts -in such a manner, and under such circumstances, in relation to the release after she signed it, as would convince the jury that her statement that she did not know what the paper was when she signed it, was a falsehood.

      IX. The defendant was allowed to prove, under our exceptions, the value of the thaler in currency, which is contrary to the decisions which give only its gold value in a case like this, in a suit brought here. (Swanson v. Cooke, 45 Barb. 574.)

      F. F. Rail, for the respondent.
    I. The questions put to the plaintiff, on cross-examination, as to the commencement of a divorce suit by her against the defendant, on May 22, 1861, as to whether she was his wife, and as to whether she had sworn, under oath, in a suit in the Supreme Court, that she was married to him in Magdeburg, were properly overruled.
    1. If the defendant intended to .avail himself of the coverture as a defense to the action, he should have set it up in the" answer. Having omitted to do so, all inquiries on this point were irrelevant and immaterial. (Dilaye v. Parks, 31 Barb. 132.)
    2. If it was the object of the defendant’s counsel to exclude the testimony of the plaintiff on the ground of incompetency, he should have insisted upon her examination voir dire, and before she had been examined in chief. (Seeley v. Engell, 3 Kern. 542.)
    H. The question put to the plaintiff, on her cross-examination, whether she had not sworn before the magistrate, at the tombs, in an abandonment case, that she brought all her money over from Germany in gold and greenbacks, was obviously for the purpose of laying a foundation for impeachment, by proof of inconsistent' declarations, she having sworn, on her direct examination, as to the 5000 thalers in Prussian treasury notes loaned to the defendant, that she got them in Leipzig. What she had sworn to before the magistrate must have been in writing, and subscribed by her. This the law requires, and this is the uniform practice. The question was,' therefore, properly excluded. (Newcomb v. Griswold, 24 N. Y. Rep. 301. Bellinger v. The People, 8 Wend. 599. 1 Grreenl. Ev. §§ 463, 465.) If the question were improperly excluded, the error was cured by the offer subsequently made to the defendant’s counsel to allow him to put the question. [Stephens v. The People, 4 Park. C. R. 396.)
    IH. As to many of the exceptions to the rejection of _ testimony reviewed in the foregoing points, and as to all of those not thus far reviewed, it is impossible to see what the object was in putting the questions rejected, except to divert the attention of the jury from the real merits of the case. At all events, the nature of the questions themselves was not such as to enable any one, “ without explanation,” to see their relevancy. [Opinion of Denio, Ch. J. Chapman v. Brooks, 31 N. Y. Rep. 88. Fairchild v. Case, 24 Wend. 383. Daniels v. Patterson, 3 Comst. 47. Van Amringe v. Barnett, 8 Bosw. 357.) The same rule applies, also, to a cross-examination. [Ogden v. Raymond, 5 id. 16. Bellows v. Sackett, 15 Barb. 104. Keeler v. Salisbury, 33 N. Y. Rep. 655.) It is an elementary rule, that the limit of a cross-examination is within the discretion of the judge conducting it. [Plato v. Kelly, 16 Abb. Pr. 188.)
    IV. In the inquiry as to the valué of the Prussian thalers loaned to the defendant, it was proper to take into consideration the premium on gold at the time of the loan, because this was an essential element in the calculation of the value of the thalers in the currency of the United States. Consequently, the' testimony at folios 20, 23 and 64, 65, was admissible, and the objection of the defendant’s counsel to any evidence as to the value of gold in currency, was properly overruled. [Councer v. The Steam Tug Griffin, Am. Law Reg. N. S. vol. 5, p. 45.) ■ At all events the error, if such there were, could not have worked, any prejudice to the defendant, as the value was afterward proved, by the competent evidence of the broker Ternow, without objection. [Castree v. Gavelle, 4 E D. Smith, 425. Belmont v. Coleman, 1 Bosw. 188. Lowery v. Steward, 3 id. 505. Benedict v. Ocean Ins. Co., 1 Daly, 9.)
   By the Court, Robertson, Ch. J.

The principal point arising upon the. appeal from the order denying the motion for a new trial upon the judge’s minutes, is whether there was enough ¿vidence to go to the jury upon the question whether the plaintiff signed the release set up in the answer, “ without knowing what it was, under the supposition that she was receipting for_2500 thalers, upon a return pro tanto of the loan she had made; that she signed it supposing she was simply signing a receipt for that money.” Which was submitted to the jury, and if answered in the affirmative by them, was declared by such judge to be fatal to the release. There was no other ground on which a verdict could have been found for the plaintiff. Assuming that it is a principle of law, that mere ignorance or mistake as to the contents of an instrument by a party executing it, however much the result of their own negligence or willful conduct, even although they have received a valuable consideration for executing it, is sufficient to invalidate it, without returning such consideration, yet that must at least be qualified by the sufficiency of all the circumstances preceding or attending such execution to induce a person of ordinary intelligence to infer that it was of the nature so supposed, even if no misrepresentation or misconduct of the opposite party be necessary. It would be monstrous to invalidate instruments upon the mere oaths of the parties executing them, that they did not know what they contained, or believed it to be something else than it really was, without a reasonable or plausible ground for such belief, in case they omitted to disclose their ignorance, or otherwise left the party in whose favor they executed such instrument unaware of it. No one, who parted with value on the faith of an executed instrument, would be safe, if that were the rule, without a minute examination and instruction of the party executing, , in the presence of witnesses, to ascertain if he knew the contents of the instrument and their legal effect.

The jury may be considered as having disposed of the question of the loan in controversy by their verdict, whatever suspicions might attach to the evidence in favor of it, from the time when the first claim for it, known to any one hut the parties was made, or the circumstances of making it, or the relation of the parties, and the time and mode of repaying one half of it as stated by the plaintiff. The testimony of the plaintiff, that she supposed the paper she sign'ed was a mere receipt for such half of the loan, will not be sufficient to warrant the verdict of the jury, unless she had reasonable ground for such supposition. And it must be presumed that she could not have had such ground, if the facts known to her at the time of such execution, in the absence of any fraud or undue influence, were such as to have prevented any person of ordinary intelligence from supposing that such release was a mere receipt.

The sole ground upon which the plaintiff claims that she supposed such instrument to be a mere receipt was, that the defendant told her the night before, that if she would sign the paper, which was a mere receipt for half of the money she had lent him, he would give it to her, and the other half in two months; and she believed what he told her, that it contained a receipt for the 2500 thaler^ out of the money she had given him. This, apart from any other circumstances, would seem quite credible considering the relation of the parties. But those which preceded and accompanied such 1 execution, give a different color to the transaction.

The plaintiff was not illiterate, for she could read and write her native language, in which the release was written. She was disposed not to part with her rights, without fully understanding the mode of doing it, for she had just refused to sign a paper in English, because she could not understand it. She was not without assistance or advice, for her counsel drew the instrument, for which she paid him, and she executed it in his office, and in his presence. She had an opportunity of reading it, if she had chosen, and actually saw, when she signed it, the upper half of the last page as it was folded, which contained a release of all claims. Her counsel, it is true, may have declined to read it, for want of time, on account of its length, yet that very length he attributed to that of the instrument brought to him by the defendant, the nature of which was made known to her on the previous interview. But she asked no questions, even as to its general nature, or why the previous arrangement of the breach of promise of marriage claim had fallen through, or why a mere receipt for money was so long.

Such instrument was executed on Monday morning, pursuant to an arrangement made on the previous Saturday afternoon.1 The plaintiff had that day employed counsel to enforce a claim for breach of promise of marriage, in consequence of a previous threat of the defendant to leave her. That counsel went the same day with her to the defendant’s office. After some conversation with the defendant, her counsel communicated to her a proposition he had made to pay her 5200 dollars in settlement of such claim. A dispute, which then arose as to the custody of the child, with which she was supposed to be pregnant, was finally arranged by the agreement under seal given in evidence, of the defendant to support such child until seven years old. That agreement was then reduced to writing in German by the plaintiff’s counsel, signed by the defendant, and, either on that occasion or on the following Monday, delivered to the plaintiff. Ho other claim was mentioned on that occasion as existing, except such breach of promise and the custody of the child. Hothing was said of any remaining 2500 thalers. 1 A paper drawn by the defendant’s counsel (Stemler) was then handed to the plaintiff’s counsel by the defendant, which was in English,' and which the plaintiff had refused to sign. The plaintiff not understanding that language, her counsel was requested by both parties to draw the instrument in German, and he drew the release in question, based on such instrument, according to what he understood to be the understanding of both parties, they having given instructions and information to him in each other’s presence in relation thereto.

The plaintiff claims to have signed such release, solely because the defendant threatened to leave her ; unless she would agree to receive half the money he had borrowed from her, and give him a receipt for it, and to have received the defendant’s agreement from him, simply because it was given to her, without knowing what was in it. That although she retained it, she never read it, because, she was constantly sick. The defendant at first left her, but returned in two months, proposing to live with her again, and the first question she seems to have asked him was, What he had done with the paper she had signed ? His reply to which, (that he .had burned it,) satisfied her, for they resumed their former relations, and after living with him for some time, (how long does not appear,) she waited until two years after the supposed loan was made, to sue for the part unpaid, and never seems to have sued the defendant for the defined cause of action for damages.

The jury could only have arrived at the conclusion at which they did, upon the facts before them, by assuming first that between the Saturday, when the plaintiff had employed counsel to enforce a claim for damages for breach of promise of marriage, (made apparently in consequence of a threat of the defendant to leave her,) which counsel .had forthwith adjusted the claim, and the following Monday morning, when the arrangement was to be carried out and a release signed, it was discovered that' 2500 United States dollars were just equal to the half of 5000 Prussian thalers, (whether with or without interest does not appear,) and upon the defendant insisting that the plaintiff should take it for such half, and give a receipt therefor, leaving the claim which had been settled undisposed of, the plaintiff (moved by a similar threat to that which induced her to make such claim,) agreed to take that sum for such part of the loan and give a receipt therefor; that she allowed her counsel to remain in entire ignorance of the change of the arrangement, and * signed a paper drawn by him, which she knew was to have been drawn pursuant to the previous understanding, without asking any thing about it, although she had every reason to believe it was so drawn.

The release, as -drawn, (which included a discharge of all claims,), corresponded, as appears by uncontradicted testimony, with the understanding of the parties, and accorded with the instructions given on .the previous Saturday afternodn. The defendant had a right, therefore, to expect a release of that nature to be drawn for the sum he was to pay. The plaintiff must have known that a receipt for any particular claim was embraced therein.' The defendant had no motive, therefore, to use any threats to induce the plaintiff to accept the sum agreed upon, for one account more than another; or to persuade her that the instrument to be signed wouldmerely acknowledge the receipt of the money. On the other hand it is difficult to imagine, why the plaintiff should have exhibited so much reluctance, to give a receipt for the money as payment of part of a loan, instead of signing a release of all claims, or, (unless the settlement was a very good one,) to take the money on account of the loan, instead of the claim for damages, as to require a new threat of abandonment by the defendant to overcome it. And it is still stranger that, having employed counsel to take care of her interests, who negotiated the settlement and was employed in drawing'an instrument to carry it out, she wholly omitted to consult him as to the propriety of the change, or ask him any question as to the nature and effect of the instrument she signed, or to pursue the original claim. There' was certainly nothing done by her in his presence to induce such counsel to believe that the settlement was not in accordance with the previous arrangement, and that the instrument signed was intended to be a discharge of the claim for damages as well as all other claims. Indeed no other claim but that was ever disclosed to him by her. He had no reason to doubt her confidence in him, yet if any thing had passed favoring the idea that the paper signed was to be a receipt only, it must have awakened his suspicions. Her last instructions, on Saturday afternoon, had been to draw a general release, and on Monday morning, although she supposed what he had drawn was a receipt for part of a loan, which had never been spoken of between them, she did not ask him how he knew any thing about the loan, or. came to draw a mere receipt, or whether the paper she signed was such. He was thus left in the dark as to any .change in the arrangement.

It is very plain that if the understanding of the parties, as fixed on the Saturday afternoon, had been carried put and the release was drawn by the plaintiff’s counsel according to such instructions, and the plaintiff had done what was agreed upon, the present cause of action would have been taken away. In good faith she was bound to carry out that agreement whatever the defendant did. She has actually carried it out by signing the release. If allowed to stand, it will accomplish the first agreement of the parties, and in equity it ought to be enforced. Should her bare recollection of her impression as to the nature of the paper, although inconsistent with circumstances known to her, and contrary to all probability, and standing alone, be permitted to invalidate it ?

It is a circumstance somewhat worthy of note if the payment was to be of a loan, that the money paid was United States currency, and the money lent Prussian. ' The complaint alleges that the money lent was worth $5250. A witness on the trial testified that a Prussian thaler was always worth seventy-one cents in gold, which would make the sum lent only $3750 in gold. To raise its value to $5000 would require a premium on gold of nearly forty-one per cent, and to raise it to $5250, one of nearly forty-eight per cent. One witness, who obtained his knowledge of their value only by American newspapers seen in Europe, made the highest value in July, 1863, the date of the loan, ninety-eight cents. Another, who was then a soldier in the United States army, fixed it at a dollar, although it does not appear from whence he derived his information. It is not strange that a sum ($2500) should be taken in satisfaction of a claim of damages for breach of promise of marriage,.but it is a little extraordinary, in the absence of any explanatory evidence, that just that sum should be given and received to pay half of a debt of 5000 Prussian thalers, whose value was indefinite, without any discussion, particularly as it does not appear that any thing was said about the interest.

The plaintiff knew, then, when signing the release that the only instructions "she had given her counsel were to draw such a paper, and that he had had no instructions from her intermediately. That the' paper signed by the defendant related to the custody of her unborn child, and was part of the original settlement. She saw that the paper signed by her occupied more than a page, and was long enough to be folded. She was informed by her counsel that it was too long to read, and was rendered so by the paper drawn by the defendant’s counsel, which she had refused to sign, and which was handed to him in her presence, to be re-written in German, and she understood it to relate to the claim for damages previously compromised; Without any inquiry as to the nature of the paper, merely because the defendant had told her it would be a receipt, and threatened anew to leave her if she didn’t sign it, she assumed that it was nothing but a receipt. No one of ordinary intelligence, exercising ordinary caution, under the circumstances under which such paper was prepared, and without further information, could or would have believed that a mere receipt had been drawn and was the paper signed, when it had only been spoken of the evening before between the parties, in the absence of counsel. Her subsequent conduct belies such belief. The first question she seems to have put to the defendant, after carrying out his threat and living apart for two months, upon his proposal to return, was, What he had done with the paper she had signed ? It would have been a matter of no consequence if it had been only a receipt. He seems to have understood the object of the°question, and answered he had burned it; it was a scandal to carry about. She could not have understood him to refer to a mere receipt for money lent; hut she immediately resumed her former relation. It is also remarkable that before the release was produced, and on the trial the plaiptiff testified, that she had demanded from the defendant the whole of the loan, in April and May, 1864, which was after the release-was signed, as well as in March, when it was signed, and when the defendant, as she testified afterwards, was endeavoring to induce her to take, and give a receipt for, one half, even threatening to leave her if she didn’t, while" after the release was produced she testified that during their renewed cohabitation, which begun two months after it was signed, she only asked for one half.

A belief of the plaintiff that such release, when she signed it, was a mere receipt, was clearly inconsistent with what had previously occurred within her knowledge; contrary to the evidence of her senses; and in the absence of any thing done on the part of her counsel to encourage it, wholly unaccountable. She must, in order .to believe so, have supposed that the defendant was anxious to pay a debt for which he was not pressed, instead of a demand for which he was; that her counsel had neglected his duty by drawing an instrument which she had not instructed him to prepare, in place of one which she had, and that, too, without any directions from her; that an instrument three or four pages long was a mere receipt; that it needed counsel to prepare it; and although she knew its length was due to a paper which she had reason to believe was a release of all claims, she continued to believe it was only a receipt. Such a belief was too irrational to have been submitted to the jury, as a ground of invalidating the release. It would be subversive of every principle of justice to allow á party who had signed an instrument, and received the consideration for signing it, to avoid it by swearing to her mere supposition of its nature as being different from what it really was, in the face of every proof to the contrary. The motion for a new trial, upon the ground of the verdict being without evidence, I think, should have been granted. This, however, might subject the defendant to the costs of the former trial; and it becomes, therefore, necessary to examine whether any of the exceptions on the trial, to the admission or rejection of evidence, were well taken.

In the first place, if the value of a Prussian thaler was of any consequence in the case, it is very evident that neither of the witnesses offered for the purpose showed himself possessed of the proper knowledge of the value in New York at the time of the supposed loan, in .July, 1863, to enable him to testify. One was in Europe and the other in the United States army. The former (Stalknecht) acknowledged himself unable to testify precisely as to such value, and based his calculations upon the value of gold as reported in newspapers which he read in Europe. I am not aware of any rule making newspaper reports of value, evidence. The other witness (Ternow) did not explain how he was able to ascertain the value of a thaler in New York, while serving in the army elsewhere. Indeed he did not state his means of knowledge at all. Neither of those witnesses were experts, and the admission of the questions put to them was erroneous.

The questions also put to the plaintiff, whether she commenced certain suits against the defendant in the year 1865, were relevant. It did not appear on the trial when she discovered the paper she signed to be something more than a receipt, but it appeared that she ascertained, as she supposed, that the defendant had burned it, two months after she executed it. She had employed counsel to draw it, as a release of a claim for damages for breach of promise of marriage, which she employed him to press. If, therefore, she brought an action for that cause in January, 1865, and not until then, it would go to show that until she had reason to believe the release was destroyed, she made no claim, and therefore must have thought such release a good bar to it. The action for 2500 thalers would also go to show that no claim was made until it was commenced for the residue of the loan, and then that for $5250, which was the present action, would tend to show the staleness and want of good faith of the claim.

The questions as to the marriage of the parties were also improperly excluded. Whether a wife can sue her husband in a common law action, for moneys lent, is not yet settled. She cannot, however, be a witness against him, and the defendant had not waived the objection against the plaintiff’s competency by allowing her to be examined in chief. (Seeley v. Engell, 13 N. Y. Rep. 546.) Her statement also in a complaint in an action, of her marriage, was likewise proper evidence to show her in competency.

I cannot perceive that the widest liberty of cross-examination could make the questions as to the illicit relations between the parties, put to the defendant on his cross-examination, relevant to any fact in issue, or lead to any discovery material to the merits. They did not tend to prove the loan of the money in controversy, and were as fatal to the moral character of the plaintiff as to that of the defendant, if that was to affect their credibility. They may have possibly awakened some sympathy on the part of the jury to control their judgment, but were otherwise immaterial.

For such erroneous admission and exclusion of testimony, the judgment should be reversed, and a new trial had, with ■costs to abide the event.