Loper v. Somers

The opinion of the court (the foregoing statement having been made) was delivered by Green, J.

1. Under the assignment of common errors, this court will not reverse a judgment, except it be for error manifest in the record brought up by the writ.

In our practice the writ of error brings up, as at common law, the record of the judgment below, or a transcript thereof, and, by statute (Pamph. L. 1903, p. 592, § 211), the bills of exceptions. See Lewis v. Lewis, 37 Vroom 251, 252 (1901). The common errors relate only to the record itself (1 Chit. Arch. Pr. (12th ed.) 572; Driscoll v. Carlin, 21 Vroom 28 , 29 (1887), and when such are assigned this court may reverse, for error manifest in the record, even though such error be not urged in argument. The- court has lately so done in Rollins v. Atlantic City Railroad Co., 41 Id. 664, 667 (1904). If, however, the judgment record itself appears, *661 on inspection, to bo sufficient in law, there will be not a reversal but an affirmance. See Driscoll v. Carlin, supra; 21 Mills v. Mott, 30 Vroom 15, 16 (1896); Wanamassa Park Association v. Clark, 32 Id. 611, 612 (1898). Under the first assignment, therefore, the judgment under review will not be reversed.

2, When errors specially assigned are not argued by counsel, this court, by its settled practice, is not obliged to consider them.

The second and third assignments of error were based upon exceptions taken to portions of the charge of the court below, but at the argument the counsel of the plaintiff in error did not seem to regard them as of sufficient importance to justify discussion, hence .the errors alleged have not demanded or received consideration. Roofing Company v. Leather Company, 38 Vroom 566, 571 (1902); Hopwood v. Atha & Illingsworth Company, 39 Id. 707, 713 (1902).

3. Waiving all matters which in anywise savor of technicality, we have so far examined the testimony adduced at the trial as to find that the facts warranted the direction of a verdict for the plaintiff. The case is one for an application of the rule — more than once approved in this court — that ’it is the duty of a trial count to control a jury in its verdict by a binding instruction, when the testimony will not support any ■other verdict.

At the very outset of our examination into the merits we have found an obstacle in this, that the attorney for the plaintiff in error, in his assignment of error on the direction of a verdict for the plaintiff below (the fourth assignment), fails to point out any ground of error in such' direction. That an assignment of error should definitely point out the ground of error is well settled, and has been very recently insisted on in this court. Donnelly v. State, 2 Dutcher 463, 512 (1857); Lutlopp v. Heckman, 41 Vroom 272, 273 (1903).

Putting aside this obstacle, we find the defendant below admitting (see his testimony prefixed hereto), (a) That he signed and delivered the first sealed bill, which he commonly spoke of as a-note;

*662 ■ (b) That he received the full consideration, thereof in the shape of four drafts, on which he obtained the money; and (c) That there was a novation of the first contract, in. one form of the third class known to the civil law, the assent of' the original creditor (Mr. Loper) being manifested by his-evidence in behalf of the plaintiff, and perhaps byr his destroying the first bill; the assent of the new creditor (Mrs. Loper) being shown by her demanding payment of the second bill and suing thereon, and the assent of the debtor (Mr. Somers) being manifested by his paying $500 on account of the new bill and acknowledging his signature thereto.

The novation referred to is that form of the class called deleg atio, wherein the debtor remains the same as at the first, but a new creditor is substituted for the old. This obligation is discussed by Pothier, in his Treatise on the Law of Obligcvtions (Evans’ ed.), volume 1, pages 434, 444, and it was, at an early day, recognized by the common law. See Bracton de Leg. Angl., Lib. 3, ch. 2, § 13. In order to the validity of this particular form of the obligation, the concurrence of all three of the parties is requisite — the original creditor, on being” otherwise satisfied, discharging the debtor; the new or indicated creditor, accepting the debtor as his own; and the debtor, on being discharged from the original contract, entering into the new obligation. As has been seen, this threefold concurrence existed in the case, under review.

In such a state of facts it is plain that no verdict in favor of the plaintiff in error (defendant below) could have been supported, if rendered, and it became the duty of the trial court to control the jury in its action and to direct a verdict for the plaintiff. Lippincott v. Royal Arcanum, 35 Vroom 309 , 311 (1899); Anderson v. Central Railroad Co., 39 Id. 269, 272 (1902). As the evidence justified and required such a direction, no charge could rightly have been given other than that which was given. Whitaker, Receiver, v. Miller, 34 Id.. 587, 588 (1899). Under the fourth assignment, the one chiefly pressed, there is no error found requiring a reversal.

Let the judgment be affirmed, with costs.

*663 For affirmance — Ti-ie Chancellor, Ci-iiee Justice, Dixon, Garrison, Fort, Garretson, Swayze, Reed, Bogert, Vooriiees, Vroom, Green. 12.

For reversal — None.