« ForrigeFortsett »
evidence offered by plaintiffs. The ref Also held, (Allen, J., dissenting), eree reserved his decision, in several That there is a distinction between the instances, until the close of plaintiffs' seservation of the question as to the efevidence, when he proceeded to dispose fect of evidence and a reservation as of the objections raised. He refused to its adınissibility. A ruling of the latto decide as to the persons affected by ter kind must be considered upon resome portions of the evidence, holding view the same as if an objection had that these questions could only be de. been made and overruled, and the reftermined when the who e evidence was eree's decision excepted to. in, and to that extent overruled defend The practice of reserving a decision ants objection. An exception was as to the admissibility of evidence taken by their counsel, who claimed when objection is taken is not to be that they were entitled to an absolute commended. 45 N. Y. 804. ruling. Upon one of the rulings of the A memorandum was offered in evi. referee reserving his decision, defend- dence by plaintiffs and received. Deants' counsel excepted to the reserva fendants' counsel objected to it, that it tion. The referee subsequently made was not evidence against any of the similar rulings declining to decide parties but defendant B. or against any against which defendant the evidence member of the firm of L. C. & Co., exwas allowed, and at the close of the cept C., and that it was proved that the testimony he declined to decide any of contract was outside of the memoranthe questions thus reserved, stating that dum. The referee reserved his decisthis would be determined on the decision as to the first two grounds and overion of the case.
ruled the objection as to the third The evidence in regard to which the ground. Defendants subsequently referee reserved his decision, affected moved to strike out this evidence, and the most important issues in the case, the motion was denied. The memócanand the principal question involved, dum related to the terms of purchase which was the joint liability of all of of the F. Coal Company, and sta ed the defendants for the indebtedness the amount of capital stock, the numto recover which the action
was ber of shares, the price, and that cash brought. It could not always be deter- was to be paid upon delivery, and that mined, when the evidence was offered, L. and G. were to have a certain nuinwhether it affected one or all of the de- ber of shares, which were named, at fendants. It was conceded that the cost. The evidence tended to show that testimony was proper as against one or at the time the sale was made B., one more of the defendants.
of the defendants, made the memoranChas. F. Southmayd, for respts.
dum which was found among his paWaldo Hutchins, for applts.
and read it over to those who were Held, (Allen, J., dissenting), no er- present inquiring whether it was cor
That unless it appeared that the rect or whether the parties, who were defendants' interests or rights were af- present, should take the stock which fected injuriously by the referee's ac- was then sold. It was not offered to tion, no rule of law was violated, and refresh the memory of the witness. the referee was authorized to use his Held, Allen J., dissenting), That discretion in reserving his decision. the evidence was not admissible in that
point of view, and the rule applicable dollars, and there was due upon the to such a case cannot be invoked, nor judgment at the time of the sale over was it competent alone as the contract thirty-five thousand dollars. of the parties, but it was evidence which At the sale the property was purcorroborated and confirmed the oral chased by the respondent, Amos F. proof, as it coincided with it as to the Eno, for the sum of eighteen thousand terms of the contract. The two to-sixteen hundred dollars. It appeared gether showed what the contract was, by the affidavit of one M., who for the and there could be no valid objection defendant, and with the consent of the where an oral contract has been made plaintiffs, endeavored to find a purto prove that its principal terms were chaser for the premises at private sale, written down and a memorandum made that George W. Pell had agreed to of them and read at the time.
take the property and pay the sum of Judgment of General Term, aflirm- twenty-one thousand five hundred doling judgment on report of referee, af lars for it, and that he was still willing firmed.
to pay that amount, and that he was preOpinion by Miller, J.
vented from attending the sale by the
mistaken assurance given him that the RESALE OF MORTGAGED property would be sold at private sale. PREMISES
On the morning of the sale the deN. Y. SUPREME Court. GEN'L TERM, fendant, Cudlipp, states that he informFIRST DEPARTMENT.
ed Mr. Cohen, one of the plaintiffs, John D. Phillips and another and who was present when it was made, of Amos F. Eno, respts., v. Reuben H. the offer made by Mr. Pell, and he
swears that the plaintiffs' attorney, B., Cudlipp, impl’d, &c., applt.
then replied “that it would be better to Decided May 1, 1876.
let the property be sold, let Cohen buy A re-sale of premises under a decret of it in, and, we could then carry out any foreclosure will be directed upon
afterwards." equitable terms when the first sale is equitable arrangement made in such manner as to prevent And that trusting to that understanda fair competition, or where for any ing he took no further interest in the cause it would be inequitable to per- matter, and supposed the property was mit the sale to stand.
struck off to Cohen. An order denying application for a resale of mortgaged premises affects a
The affidavit of Scott shows that the “substantial right” as same has been defendant understood that to be the arconstrued, and is appealable to the rangement, and that no further attenGeneral Term, although involving the tion was given to the sale for that reaexercise of discretion. Appeal from order denying motion
Some of the foregoing statements foi a re-sale of mortgaged premises.
were modified and changed by counter Appellant was the owner of the depositions, but from such depositions equity of redemption in premiscs sold
it under a judginent recovered January confidence by the person making them
appears that there was great want of 7th, 1876, in an action to foreclose a
as to what was said on the morning of mortgage. The premises cost the de- the sale, and there were various cirfendant about the sum of fifty thousand cumstances in them to support the fore
going statement of the occurrence as by the purchaser within ten days after the correct one.
notice of this decision, and the adjustN. B. Moxie, for applt.
ment of such costs and expenses, and in Henry Day, for respt..
case such payment shall not be so
inade, then the motion should be deHeld, That while the mere pros. nied with $10 costs. pect that the property upon a re-sale
Opinion by Daniels, J.; Davis, P. J. would bring a larger price is not suffi
and Brady J., concurring. cient to order a resale, although it as an important circumstance, yet the facts
DIVORCE. shown here present a case of surprise
PHILADELPHIA COMMON PLEAS. on the part of the defendant produced at least by a failure on the part of the
Sowers v. Sowers. plaintiff's attorney to express himself in Decided June 10, 1876. such a manner and with sufficient clear! Where a husband writes a letter to an ness, as to avoid misunderstanding as to absent wife, who is residing with her what was designed to be done with the parents, that he will not receive her,
and she does not return and try to ob. property at the sale.
tain admission, it is not such a turnUnder the rule sustained by the au
ing out of doors as will entitle her thorities defendants should be relieved
to a divorce. in order to secure fair dealing and pro This is a proceedirig for divorce, a mote what the facts show to be just and mensa et thoro; it is instituted by the riglit in the disposition of this property. wife, Josephine G. Sowers, by her next The misunderstanding can be corrected friend, against her husband, William in no other way. Duncan v. Dodd, 2 H. Sowers, to whom she was married Paige 99; Brown v. Frost, 10 Id., 243; at Georgetown, in the District of Co25 How. 403, 406-7; King v. Platt, 37 lumbia, on the 19th of May, 1870, and N. Y. 155.
who immediately after her marriage reHeld further, That the order made moved to Germantown, the residence affected a substantial right, as that of her husband, where, as man and wife, phrase has in all the later cases been Mr. and Mrs. Sowers continued to reconstrued by this court and the Court side until the 24th of December, 1873. of Appeals. And an appeal from it Mrs. Sowers testifies that on that day could be taken to the General Tern, she went from Germantown to Georgeeven though it depended upon the ex- town, to make a visit to her frier.ds, ercise of discretion. That circum- and that she has never returned to her stance only prevents an appeal to the home in Germantown. Court of Appeals. It does no, affect The reasons for remaining separate the power and jurisdiction of this court. from her husband are, that the respondThe order should be reversed with $10 ent turned her out of doors, and that he costs and disbursements, and an order offered such indignities to her per: on as entered directing a re-sale of the prem- to render her condition intolerable and ises on payment by the defendant o! life burdensome; thereby forcing her the costs of opposing the motion and to withdraw from his house and family. the costs and expenses of the sale al Tie answer of the respondent exready had, with interest on the deposit pressly denies both allegations; a large
amount of testimony has been taken in Mr. Sowers, which, if correctly stated, support on the one hand, and in denial accounts satisfactorily for his failure to on the other, upon the vital questions meet Mrs. Sowers, in accordance with which are presented by the libel and his uzual habit on such occasions. the answer.
The most serious and important of Under the second' head of legal justi- all the charres under this head, which fication in separating lierself from her are made by the wife against her hushusband, the libellant charges against band, grew out of his letter to her of him, that he insulted her by false, February 3d, 1874, and his refusal to slandours and opprobrious epithets. contribute means of support to his wife That he at various times and for long and child. Mrs. Sowers had been abperiods of time refused to speak to her;! sent from her home from the 24th of that when absent from him he neglected December, 1873, on a visit to Georgeto write to her. That he neglected to
town. On January 1st, 1874, she inmeet her at the depot on one occasion formed her husband by letter of her on her return from a visit to George intention to return to him on the 5th of
That he addressed insulting that month. The material portions of letters to her; and that he has neglected respondent's letter begins with the third her since she has become a mother, in paragraph, in which he writes: “I refusing to receive her into his honse, shall not receive you. Yiu left my and in not contributing means for the bed and board without my permission. support of herself and her child. The You have da ly and hourly insulted me, : child was born at Georgetown, after the ind treated ine with the utmost conlibellant last left t!ie home of her hus. tempt. By the laws of my State I canband on the 24th of De<ember, 1874, not refuse you admittance. and has never been seen by the respond. Your family have played an infamons ent.
part in this business, and I suppose they On her return from Georgetown de- are satisfied, when they are able t) tendant neglected to meet her at the keep you six weeks in the hands of Germantown Junction, several miles
your old lovers." from her home. Smarting under the
To this letter Mrs. Sowers did not irritation of the seeming neglect, instead of going to her home, after so reply, but her brother wrote to the reslong an absence from it, and seeking an pondeat immediately on the receipt of explanation from her husband, if one
it, saying: “ She will now remain with
those who know how to appreciate was required, for this omission of an accustomed attention on his part
, she her,” and asking that her individual turned away from her home, when al- property, (lo‘hing, &c., should be sent mnost at its door, and songht the protec. her. The decision of Mrs. Sowers to tion of acquaintances in the city, send remain in Georgetown is pla ed by her
brother on the ground of a refusal of ing no word, until the next morning, where she was, though she knew her Mr. Sowers to receive his wife into his
house. From that time all direct comreturn was expected that evening, the testimony showing that preparation had munication between the libellant and
She did not been made for her reception. This is the respondent ceased. aside from the explanation given byl write to him informing him of the
birth of of their child, though her physi- ent have placed such opposing interprecian did; and the respondent asserts, tations. If the conduct of the respondand makes it one of his causes of com- ent is to be judged by the letter of the plaint, that when she left him, on the 5th day of February, it falls very far 24th of December, he did not know below the facts proved in the case of that she expected to become a mother, May v. May. We have the oath of the asserting that she had kept from him all knowlege of her situation. This as that no more was meant by the expres
respondent in support of the allegation sertion of the respondent was denied by sion than that he would not meet her the libellant, and in connection with this denial she charged against her hus. at the junction as he had done on all
prior occasions, except the one to which band, as an act of cruelty, that he had
we have referred, and that all accusmade no inquiries about her her child. In her testimony she says : mother, which was his home also, were
tomed privileges in the home of his “ He has
contributed one reserved for his wife; that her room penny towards the support of either of was prepared for her reception, and had us—he has never visited either of us."
been kept awaiting her return ever Allison, J.-In May v. May, 12 P. since. Whether this is a correct exF. S. 206, in support of the demand of planation of the declaration that he the libellant in this case, the question would not receive his wife, we have no of actual turning out of doors was not means of determining, except the oatlı raised. The husband's proposition was of the respondent, and the qualifying to allow his wife to return to his house statement in the letter, that “ by the and occupy a small sleeping room, have laws of my State I cannot refuse you the care of her children and eat at his admittance.”
The libellant, placing table, but on the condition, that she her own construction on this letter, has was denied all control of the house, thought proper to rest upon that conwas required to take a position in the struction, and to remain in Georgetown family subordinate to a servant who separate and apart from the respondent. had treated her unkindly. This in con We have no case in Pennsylvania, in nection with proof that he whipped her which the suit of the wife was mainwith a cow-hide, treated her with cruel. tained on the ground that she was turnty and neglect in her confinement, in- ed out of doors, where it was not shown ficted personal violence, which was that the wife was ejected by force, or evidenced by her screams and the marks was compelled to leave because of a upon her person, was all submitted to threat to employ it, and a reasonable the jury upon the question of infliction apprehension that it would be used of indignities to the person which just- against her; or a refusal to receive her ified the wife in withdrawing from the upon demand that she should be taken family of her husband. These facts into her husband's home as as a wife; make out a case widely different from or an emphatic refusal to allow her to that of the libellant, who never mani- remain and "behave herself as a good fested a desire to return to her husband, wife ought to do.” Or lastly, where the nor has she askel an explanation of the facts did not show a justification on the letter upon which libellant and respond part of the wife, in withdrawing from