Burnett & Co. v. Blackmar & Chandler

Warner, Judge. This was an action brought by the plaintiffs against the defendants, as partners, using the firm name of “Burnett Line of Steamers,” to recover for services alleged to be due them under a parol contract. The defendants pleaded that the alleged contract was not to be performed within one year from the making thereof. On the trial of the case, several exceptions were taken by the defendants, to the rulings of the Court, as set forth in the record, and they also excepted to the charge of the Court to the jury. That part of the charge complained of, is in the following words: “ If the plaintiffs, on the 1st of October, entered on the performance of said contract, and did any aot under said contract, then there has been a part performance of said contract, and this would render it a valid contract and entitle the plaintiffs to recover.” This charge of the Court was error, in view of the [577] facts contained in the record. The Court should have charged the jury, that if there had been such a part performance of the contract on the part of the plaintiffs as would render it a fraud on them, by the refusal of the defendants to comply with the contract on their part, that would render it a valid contract, and entitle the plaintiffs to recover. There was no error in the rulings of the Court on the other exceptions specified in the record. Ju d g m entire versed.