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Opinion of the Court, per CHURCH, Ch. J.

Brown v. C. and S. R. R. Co., 12 id., 486; Oatman v. Taylor, 29 id., 649.) The purchase by Baker effectually determined the partnership.

CHURCH, Ch. J. The only exception taken in this case, was as to the admission of the paper of September 3d, signed by Baker, and certifying that he had purchased the interest of the other two members of the firm, in the firm, and agreeing to assume all the liabilities of the firm. There is also an exception to that part of the charge relating to "this writing," which it is claimed refers to the paper of September 3d, although other writings were introduced in evidence. Assuming this, the same question is substantially presented upon both exceptions, and that is, that this paper was inadmissible as evidence to prove a dissolution of the firm. The two members of the firm who defend this action, testified in substance, that the partnership was dissolved on the third of September, and that this paper was then executed and delivered by Baker as evidence of the dissolution.

The paper was not in the nature of a mere declaration of a third person, but was an act tending at least to show a dissolution. It was a part of the transaction which was claimed to be a dissolution of the partnership. A dissolution may be proved by parol. It may be partly by parol, and partly in writing, that is, there may be a parol agreement of dissolution, and a writing transferring the interest of one member to another, or an agreement to assume liabilities, and neither of them express in terms the agreement to dissolve. I apprehend such a writing, in part fulfillment of the parol contract, would be competent upon the question, whether such an agreement was in fact made, as corroborative of the alleged parol contract, and as a part of the transaction. The paper was not signed by all the parties, and does not state, in terms, that the partnership was dissolved; but it was executed by one party and delivered to the other two, and contained statements which, if true, would be presumptive evidence, at least, of a dissolution. It states that Baker had purchased the

Opinion of the Court, per CHURCH, Ch. J.

interest of the other two members, and had assumed the liabilities of the firm. That would leave the two retiring members without any interest in the property or liability for the debts of the firm, and would constitute a dissolution. We can only regard this upon the question of competency. The effect which it was legitimately entitled to, upon the liability of the two retiring members, under the evidence in the case, seems not to have been presented on the trial so as to be reviewable here. If this partnership was open and notorious; if it was known that the Messrs. Parsons were members, and the plaintiff gave credit to the firm on their responsibility, or if they consented to the use of the firm name after dissolution, a private dissolution, not advertised, might not relieve them; but no such view seems to have been presented so as to raise a question of law.

On the fifth of December it seems that a formal notice of dissolution was signed by all the members and published, and a formal transfer of the property executed and delivered to a third party; and it is claimed by the learned counsel for the appellant that, as these papers, upon their face, show a dissolution on that day, they furnish conclusive evidence that the firm continued until that time, and had not been dissolved before. The answer to this position is, first, that the point does not seem to have been taken on the trial, and there is no exception bringing up the question; and, second, if there had been, it would not be tenable. It is true that these papers stated a dissolution on the day they were made, and, standing alone, would establish the fact that the firm continued up to that time; but they were not conclusive. It was competent, notwithstanding, to prove a dissolution at a previous time. They were open to explanation in this respect; and evidence was given tending to prove that, at the time of the dissolution on the third of September, it was understood that, when Baker found a purchaser, a more formal transfer was to be made and the dissolution advertised, and that these papers were made and signed in pursuance of such agreement. The judge, in his charge, properly submitted this, with the other

Statement of case.

! 46 564 127 644

evidence, to the jury, to determine when the dissolution took place, and there was no exception to his charge in that respect.

The judgment must be affirmed.

All concur.

Judgment affirmed.

ISAAC G. SANDS and JOEL S. WINANS, Appellants, v. CHARLES
CROOKE, Respondent.

Sections 268 and 272 of the Code, which provide that a judgment shall not
be deemed to have been reversed upon questions of fact, unless so stated
in the order of reversal, apply only to cases tried by the court and a
referee, and not to cases tried by jury.

If it appears in the latter case that the order granting a new trial was, or may have been granted upon questions of fact, this court will not entertain an appeal.

If exceptions appear in the case, which were well taken, the court would be justified in rendering judgment absolute for respondent, and they will only be examined, for the purpose of determining whether such judgment shall be rendered or the appeal dismissed.

Defendant owned a dock upon the Hudson river, which, prior to May 1st, 1867, had been used for freighting purposes, but was then not in use, which disuse detracted from its value. He entered into a parol agreement with plaintiffs by which he undertook, that in case they would carry on the freighting business from said dock and run a boat therefrom to the city of New York to the close of the season of navigation, he would guaranty them from all losses or damages incurred. Plaintiffs, in pursuance of the agreement, chartered a steamboat and conducted the business, as required, to the close of the season, and in so doing sustained a loss.

Held, that the risks and liabilities incurred by plaintiffs were a sufficient consideration for the promise of defendant, as was also the benefit secured to defendant's property; also, that the agreement was not void for want of mutuality.

(Argued November 23d, 1871; decided November 28th, 1871.)

APPEAL from order of the General Term of the Supreme
Court in the second department, reversing a judgment éntered
on the verdict of a jury and granting a new trial.
The facts sufficiently appear in the opinion.

Opinion of the Court, per RAPALLO, J.

A parol promise to (Allaire v. Ouland,

A. Anthony, for appellants. The only questions to be considered are those of law arising upon the exceptions. (Code, § 272; 34 N. Y., 370; 33 N. Y., 587.) indemnify for an act to be done is valid. 2 John. Ch., 52; Messereau v. Lewis, 25 Wend., 243.) The questions were properly determined by the court and jury. (Hasbrook v. Paddock, 1 Barb., 635; Blossom v. Griffin, 3 Ker., 569; Phelps v. Bostwick, 22 Barb., 314; Spencer v. Babcock, 22 Barb., 326; Waldron v. Millard, 3 Smith, 466.)

G. F. Comstock, for respondent. This court can review questions of law only. (Dunham v. Watkins, 12 N. Y., 556; Griscom v. Mayor, 12 N. Y., 586; Oldfield v. N. Y. and H. R. R. R., 14 N. Y., 321; Thurber v. Townsend, 22 N. Y., 517; Esterly v. Cole, 3 N. Y., 502; Borst v. Spelman, 4 N. Y., 284; Livingston v. Radcliffe, 2 N. Y., 184; Newton, v. Bronson, 13 N. Y., 687; Johnson v. Whillock, 13 N. Y., 344 ; Davis v. Wynkoop, 18 N. Y., 45; Ex parte Bassett, 2 Cow., 458.) An order granting a new trial cannot be reviewed, where the record shows it might have been granted on a question of fact. (Hoyt v. Thompson, Ex'rs, 19 N. Y., 208; Griffin v. Marquadt, 17 N. Y., 28; Miller v. Schuyler, 20 N. Y., 522; Young v. Davis, 30 N. Y., 134; Vail v. Adams, 5 N. Y., 161; Dykers v. Allen, 7 Hill, 49.)

RAPALLO, J. This action was brought to recover certain losses sustained by the plaintiffs, and against which they alleged that the defendant had, by an oral agreement, undertaken to indemnify them.

The defendant was the owner of a dock and storehouse situate on the Hudson river at Poughkeepsie, which had, prior to May, 1867, been used for the freighting business, but were at that time not in use. The complaint alleges that the disuse of the property for that purpose detracted largely from its value, and that the defendant, being desirous of re-establishing the freighting business from his said dock, on or about the 7th of May, 1867, agreed with the plaintiffs to

Opinion of the Court, per RAPALLO, J.

grant to them the use of the dock and storehouse for the freighting season of 1867, and that in consideration that they would carry on the freighting business from the dock, from that date onward to the close of navigation, and run a boat therefrom to the city of New York for the transportation of freight and passengers, the defendant would pay all loss or damage they should incur thereby; and that it was further agreed between the parties, that, in case the business should prove profitable, the plaintiffs should pay the defendant for the use of the dock and storehouse the sum of not more than $300. The complaint then alleges that in pursuance of the agree ment the plaintiffs chartered a steamboat, and from the 21st of May, 1867, to the close of the freighting season conducted the freight business from said dock, in the same manner as the freighting business was and had been for many years past conducted from similar docks, and by freighters on the Hudson river, and in so doing sustained a loss of upward of $7,500.

The defendant, by his answer, denied the agreement to indemnify, and also set up that the plaintiffs' losses were caused by their own negligence in conducting the business; and further, that they did not grow out of the legitimate freighting business, but out of operations not included in such business.

The issues were tried by jury at the circuit, and a verdict was rendered in favor of the plaintiffs for $6,000 damages.

It appeared upon the trial that a large part of the plaintiffs' losses were incurred in buying and selling live stock and grain, which dealings, they contended, were necessary for the purpose of bringing custom to the boat.

The questions litigated at the trial related in the main to the facts of the case. The plaintiffs claimed that the defendant had agreed to indemnify them against all losses which they might sustain in the business, including not only the transportation or freighting business proper, but also their dealings in live stock and grain; and in support of this claim they introduced testimony (not excepted to) to the effect that

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