Bostwick v. Willett

• Decision Date: 29 March 1905
• Parties: BOSTWICK v. WILLETT.
• Court: New Jersey Supreme Court

60 A. 398

72 N.J.L. 21

BOSTWICK

v. WILLETT.

Supreme Court of New Jersey.

March 29, 1905.

(Syllabus by the Court.)

Error to Circuit Court, Middlesex County.

Action by Edward B. Bostwick, executor, against Sarah J. Willett. Judgment for plaintiff. Defendant brings error. Affirmed.

Argued November term, 1904, before GUMMERE, C. J., and GARRISON and GARRETSON,

JJ.

Freeman Woodbridge, for plaintiff in error. F. M. P. Pearse and George S. Silzer, for defendant in error.

GARRISON, J. This writ of error brings up a judgment record of the circuit court and certain bills of exception. The declaration consisted of the common counts, without any bill of particulars. The plea was the general issue. At the close of the plaintiff's testimony the defendant moved for a nonsuit, which was denied, and a bill of exceptions sealed.

If the assignment of error based upon this bill of exceptions presented the question whether the plaintiff's testimony made out a case for the jury, the answer would have to be in the negative; for at that time all that appeared was that, for a stated quantity of coal that had been shipped to the defendant and charged to her upon the books of the plaintiff's testator, a note had been received to which the defendant's name had been signed by her husband.

The defendant, however, after the denial of her motion, went upon the stand and testified, and also produced her husband as a witness. From the testimony elicited from these witnesses upon cross-examination it was permissible for the jury to find that the coal business in question was in fact the business of the defendant, although conducted by her husband, and hence that the coal in suit had been in effect sold to the defendant. This being so, the only benefit the defendant can derive from her above-mentioned bill of exceptions is to have it treated as if it were a bill of exceptions to the court's refusal, to direct a verdict in her favor upon all of the testimony, although, in point of fact, such motion was not made. The reason for this is obvious. The mere refusal to direct a nonsuit for failure of proofs in the plaintiff's case affords no ground for the reversal of a judgment against the defendant, if, by reason of testimony that came in after the refusal of the motion to nonsuit, a case calling for the verdict of the jury was ultimately presented. Hence strict practice would require that the trial court should refuse to seal such a bill of exceptions if further testimony was to be offered, leaving the defendant in such case to renew his motion when all the testimony was in, or to prefer his request for binding instructions in some other form. After some vacillation, and apparently for the convenience of the bar, the practice arose of sealing a bill of exceptions to the refusal to nonsuit at the close of the plaintiff's case, and of permitting the defendant under such a bill to attack the judgment when other testimony had afterwards come in, provided that all of such after-received testimony that was in any way germane to the error assigned wag brought up by the defendant as part of such bill of exceptions. Such is now the established rule. Delaware, Lackawanna and Western Railway Co. v....