motion is proper. Hoagland, 11. 2. Upon the denial of such a motion, if no other motion or request is made, and no evi- dence given on the part of the defense, the court can not do otherwise than direct a verdict for the plaintiff. Ib. 3. Although a witness swears that he acted honestly and in good faith, yet the trial judge, in passing on his credibility, has a right to disregard his unsup- ported or improbable profes- sions, and construe his acts in the light which the facts and circumstances of the case throw upon his possible and probable motives, designs, and interests. Bruce v. Kelly, 27.
4. Where the testimony is clearly within reach, an assumption that the omission to produce it was the result of knowledge or fear on the part of that party to the action with whom it laid to produce the testimony, that the case could not be improved by the production thereof, is justi- fied. 1b.
5. The admission in evidence of declarations by alleged confed- erates, before proof of the com- bination, is not error if the com- bination is subsequently proved. Ib.
6. In the construction of instruc- tions to the jury, the whole charge must be considered and applied to the facts of the case. Maher v. Central Park, North & East River R. R. Co., 155. 7. In an action brought to recover the value of certain services performed by the plaintiff for the defendant, in Mexico, 8. claimed to be worth fifty thou- sand dollars, but for which plaintiff recovered in this action ten thousand dollars, from which judgment both parties appealed,-Held, on appeal, that there was a valid agreement be- tween the parties that would support the claim of the plain-
tiff on a quantum meruit, and that the real question in the case was as to the amount that plaintiff should recover; but on the re- view of some of the exceptions to evidence received under ob- jection by the court below, a new trial was ordered. These exceptions are embraced in the following points:
1. The plaintiff, as a witness, had stated that at Orizaba, on the way from Vera Cruz to Mexico, he fell sick, and in consequence thereof he stayed at Orizaba six weeks. He was then asked, "What expenses were you put to by your illness there?" and he answered after objection, &c., that his expenses were six or seven hundred dollars, gold. The general term held this testi- mony to be inadmissible, and that the error of the court was not cured by the subsequent di- rection of the judge at the close of the trial, in his charge to the jury, to disregard it, and his order to strike it out from the testimony in the case. This evidence had already (at the time it was striken out) had its effect upon the jury, and it can not be said that their judgment was not influenced thereby.
2. There was also error in al- lowing the jury to take into con- sideration the subject and ex- pense of entertainments given by the plaintiff in Mexico to the emperor and empress, and to the emperor's cabinet minis- ters, when there was no proof before them of their value or of what they consisted. O'Sullivan v. Roberts, 360.
In this action, the form of the complaint was for the unlawful conversion of bonds of plaintiff by the defendant. The proofs established that a right of action existed in favor of plaintiff, by reason of a promise of the de- fendant, and of the connection of the latter with the company who issued the same. Plaintiff
tionable, as calling for a conclu- sion of law, or for evidence be- yond the knowledge of witness. First National Bank of Portland v. Schuyler, 440.
question, the allowance of which is not error, an answer which is responsive, but which merely states his opinion on the subject- matter inquired of, and no ob- jection is taken to his answer, there is no error calling for a reversal. Pollock v. Brennan, 477.
in the middle of a question is not error where the reason for the exclusion does not appear, and the counsel does not claim the right to complete. A sub- stantial reason, growing out of the usual incidents of a trial, must be presumed to exist.
at the close of the trial moved to amend his complaint so as to conform it to his proofs. The court referred the plaintiff's ap- plication to the general term, and after directing a verdict for 11. Where a witness gives to a the plaintiff, ordered all the ex- ceptions to be heard in the first instance at general term. It ap- peared that all the testimony that established a cause of action in favor of plaintiff had been taken under the specific objections and exceptions of the defendant to all evidence of this class, except only so far as 12. Sustaining an objection urged it would tend to show notice to defendant of the plaintiff's claim; and the court expressly ruled that it should be limited to that effect solely, and that it was the clear and expressed un- derstanding between the court and the counsel at the trial, and the trial was conducted and concluded upon that theory. 13. Testimony is not to be regarded Held, that under such circum- stances the plaintiff should not be allowed to amend his com- plaint so as to conform the same to the proofs, for in such case the defendant would have judgment passed against him without a hearing upon the merits. He had a right, under his objections and exceptions, and the express rulings of the court, to consider that all this testimony was received as ap- plicable only to the cause of action stated in the complaint, it being limited by the court to the effect the same would have to show notice to the defendant of the plaintiff's claim. This testimony was not received for the purpose of establishing a cause of action founded upon 1. defendant's promise or contract. Smith v. Frost, 389.
as undisputed, although not spe- cifically controverted, when there is enough in the case to allow of its construction in connection with the other facts, and to jus- tify the results that although the witness was in general credible, yet he was incorrect as to the par- ticular testimony in question; as where a witness swears that the work set forth in a certain bill was extra, when it is quite plain from the face of the list that it contains many items which could not have been extra work. John- son v. Williams, 547.
See EXECUTION, 4-7; JUDG- MENT, 1, 2.
Where the trustee has no funds in his hands, and services are necessary to be performed, either 9. Held, that the real issue be- for obtaining possession or for tween the parties had not been the preservation of the trust tried, and a new trial was property, he may enter into a ordered, with costs to the defen- contract to have the same per- dant to abide the event. formed, not on his personal 10. What questions are not objec- responsibility, but solely on the
faith and credit of the trust property, so that payment thereof
shall be contingent on success, 1. Although a witness swears that and to be made out of the trust
2. This is an exception to the gen- eral rule that a trustee can not make a contract with a third party which shall bind the estate or fund, and is personally liable for his contracts with regard to the estate or fund. Ib. 3. Persons acting under the claim or pretense of being trustees, 2. who have, in proceedings insti-| tuted by them, secured the fruits of the services of one em- ployed by them, are estopped from shielding themselves! against liability for payment for such services out of such fruits, on the ground that their acts were unlawful and void. Ib. 4. As to effect of implied trust upon legal title, see remarks of MONELL, Ch. J., in Hudson v. Smith, 452.
he acted honestly and in good faith, yet the trial judge, in passing on his credibility, has a right to disregard his unsup ported or improbable professions, and construe his acts in the light which the facts and circum- stances of the case throw upon his possible and probable mo- tives, designs, and interests. Bruce v. Kelly, 27.
Where a witness gives to a question, the allowance of which is not error, an answer which is not responsive, but merely states his opinion on the subject-mat- ter inquired of, and no objection is taken to his answer, there is no error calling for a reversal. Pollock v. Brennan, 477.
3. Sustaining an objection urged in the middle of a question, is not error where the reason for the exclusion does not appear, and the counsel does not claim the right to complete. A sub- stantial reason growing out of the usual incidents of a trial must be presumed to exist. Ib.
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