Durden v. Cleveland

GOLDTHWAITE, J. 1. The rejection of the copy of the bill in equity between these parties when offered as evidence [227] to establish the identity of the notes sued on with those described in the written instrument, afterwards before the jury, is not a matter of importance in its connection with the case, because this identity could have no influence unless some defence was made out. But conceding that the fact of identity was material, it could not be thus established. The established rule is now to consider a bill in equity as the mere allegation of counsel, unless the party is connected with it by proof, showing a recognition of its contents, as would be the case if the bill was verified by the complainant’s oath. It is possible other modes of recognition might be shown, but we need not examine this subject further, as there is here no pretence of any recognition of the bill. The case in this aspect does not differ from that of Adams v. McMillan, 7 Porter, 73; see also Rankin v. Maxwell, 2 Marsh. 488; Gresley Eq. Ev. 322 ; 3 C. & H. Phil. E. 923. The other question raised is with respect to the exclusion of the evidence of a non-performance of the stipulations of Cleveland respecting the partnership. From an examination of the agreement between the parties it will be seen that the consideration of the notes sued for was the price of the land agreed to be sold. None of the stipulations respecting the partnership entered at all into the consideration of these notes — -and the refusal of the plaintiff, or his omission to comply with his agreement about the manner in which the partnership should be carried on, cannot affect his right to recover the price paid for the land. The sale of the land and the agreement to form the partnership are entirely distinct; and there is nothing in evidence to show that the latter was intended in any manner to control the former; therefore our conclusion is, that the rCourt below very properly excluded the consideration of the breach of the contract respecting the partnership from the jury. This did not affect the consideration of the notes, for they were to be paid before the plaintiff could be required to give a title, and no fraud is pretended. Let the judgment be affirmed.