Sennett v. Johnson

Rogers, J. The court was right in rejecting the evidence contained in the second bill, as it was an attempt to explain, alter, and extend the deed by the introduction of parol testimony. The evidence offered in the third bill was properly rejected, because it is not the subject of set-off. The whole matter proposed to be proved involved the settlement of a partnership account, which can only be properly settled in an action of account render, now pending between the parties. The additional evidence offered in the fourth bill does not vary the principle, and we see no error in the court in adhering to the former decisions. One item in the first bill, namely, that the plaintiff had taken money out of the concern, after the sale to the defendant, was not obnoxious to the objections to the other evidence, and might have been received if offered separately. But the evidence was offered as a whole, and rejected as a whole. It is not the duty of the court, but of the counsel, to discriminate in such cases. The latter have no right to throw this burden on the court. And it may be readily perceived how much judgments would be endangered if artful practitioners were indulged in this practice. It would be a trap to the unwary, and one from which the most careful judges sometimes [338] would find it difficult to escape. Here the counsel have no reason to complain, as the court distinctly announced, that as it was offered as a whole, it was rejected as a whole. We perceive no error in the answer to the points or the charge. The court have put the case on its true grounds, and we affirm the judgment for the reasons given. We have the less reluctance in coming to this conclusion, from the fact, that if the defendants have a just claim, they may (notwithstanding this judgment) assert it in an action against Johnson’s administrator. The first point was properly abandoned. Judgment affirmed.