Argument for Plaintiff in Error.

new trial, and among other things took exception to the manner, as above stated, in which the blank for damages was filled and the verdict received, which exceptions were allowed by the court."

On the next day, the defendant filed a written motion for a new trial, one ground of which was the action of the court in aiding the memory of the jury in regard to the testimony, in order that the blank for the plaintiff's damages might be filled. The bill of exceptions states that, after argument upon the motion, on both sides, the court announced its intention of overruling the motion, provided the plaintiff would remit all damages mentioned in the verdict, in excess of $4000; that such remittitur was made; and that the defendant excepted to the action of the court.

Mr. C. C. Nourse (with whom was Mr. George L. Paddock on the brief) for plaintiff in error.

Upon plaintiff's theory of the case, and upon his evidence all the elements of a partnership were involved in the transaction. It was a trading venture in the which each party was to furnish half the capital, each was to have an equal share in the profits, and each to share equally in the losses. Sidway's letter of October 15, 1872, contemplates a mere trading venture, with more to follow. The payments to be made and the amounts to be expended were indefinite. The sale of the property might be in parcels. The jury found their verdict on the statement of Sidway. If it was true that the purchase was made on the joint account of the parties in 1872, and the title was held by Sidway in trust until November, 1875, and was held in trust for Sidway until the final disposition of the property, in 1879, then it was a copartnership in which Sidway must account for the profits received in a proper action. Nicoll v. Ogden, 29 Illinois, 323; S. C. 81 Am. Dec. 311; Pierce v. Shippee, 90 Illinois, 371; Kuhn v. Newman, 49 Iowa, 424; Remington v. Allen, 109 Mass. 47; Beauregard v. Case, 91 U. S. 134. "Whenever it appears that there is a community of interest in the capital stock, and also a com

Opinion of the Court.

munity of interest in the profit and loss, then the case is one of actual partnership between themselves and as to third persons." Berthold v. Goldsmith, 24 How. 536.

Mr. John N. Jewett for defendant in error.

It is respectfully submitted that this court has no jurisdiction of the writ of error in this case, and for the reason that the judgment upon which that writ of error has been sued out, is for a sum less than the amount necessary to give to this court jurisdiction to inquire into the record or the errors of it. Thompson v. Butler, 95 U. S. 694; Hilton v. Dickinson, 108 U. S. 165; Opelika City v. Daniel, 109 U. S. 108; Ala. Goldl Life Ins. Co. v. Nichols, 109 U. S. 232; Dows et al. v. Johnson, 110 U. S. 223; First Nat. Bank v. Redick, 110 U. S. 224; Pacific P. Tel. Cable Co. v. O'Connor, 128 U. S. 394; North Pac. Railroad Co. v. Austin, 135 U. S. 315, 318.

MR. JUSTICE BLATCHFORD, after stating the case, delivered the opinion of the court.

A motion is made to dismiss the writ of error, on the ground that the judgment against Clark is for only $4000, and that, therefore, this court has no jurisdiction of the case. But we are of opinion that the amount involved is not only the amount of the judgment against Clark, which he seeks to get rid of by this writ of error, but is, in addition, the amount which he claims as a counter-claim against Sidway, and which he would have recovered if his contention had been sustained. The aggregate is over $5000, and we, therefore, have jurisdiction.

As to the merits, the case was fairly put to the jury on the disputed question of fact as to whether Clark became a joint purchaser with Sidway of the land in question; and the jury have found against Clark on that question.

There was no error in the charge of the court in the particulars excepted to, or in the refusals to charge the matter asked by Clark. The case shows that the jury must have found, and were warranted in finding, that Sidway made the purchase

Opinion of the Court.

for the joint benefit of himself and Clark; that Clark paid to Sidway $2031.40 toward the purchase-money, which was the amount thereof over and above the incumbrance which was assumed; that Clark afterwards paid to Sidway $450 on account of expenses, interest and taxes, in carrying the property; that afterwards Sidway paid the interest on the incumbrance and the taxes, until he had paid more than Clark paid; that the incumbrance matured July 1, 1875; that, Sidway being an officer of the Illinois Trust and Savings Bank, that bank purchased the Cleaver note and held it as collateral security for Sidway's personal note for the same amount, with authority to sell such collateral to pay the obligation of Sidway; that, in 1879, the bank sold the collateral, and it was purchased by Lindgren; that the net result of the sale was credited on Sidway's note, and the balance of that note was settled by Sidway, as between him and the bank, after this suit was commenced, and Sidway's individual note was paid; that, subsequently to the sale of the collateral note, and in July, 1879, the original incumbrance was foreclosed by a sale of the land, made by the trustee in the trust deed; that at the sale the land was bought by Lindgren, and the proceeds were credited on the Cleaver note, leaving a large amount unpaid, and a large obligation resting upon Sidway, growing out of the purchase of the land, one-half of which had been assumed by Clark in the deed to him executed by Sidway and wife; that that deed had been recorded by Sidway and forwarded to Clark, who received and kept it; that it contained the before-mentioned assumption by Clark and agreement to pay one-half of the incumbrance, and the interest thereon from August 12, 1872, and one-half of any further liability which Sidway might be, under in consequence of the provisions of the trust deed; and that the foregoing matters were all consummated more than a year before this suit was brought.

This suit is founded upon the assumption clause in the deed from Sidway and wife to Clark. The note of Cleaver remained, when the suit was brought, in the ownership of Lindgren; and the action was, therefore, properly brought in the name of Sidway, for the use of Lindgren. The theory put

VOL. CXLII-44

Opinion of the Court.

before the jury by Clark, and not sustained by their verdict, was that he had no connection with the purchase of the land; that the moneys which he advanced to Sid way were merely loans to the latter; and that the deed from Sidway and wife was only security for such loans.

The transaction between Sidway and Clark, of their joint purchase of the land, did not constitute a copartnership in respect thereto. It was a single, special adventure on joint account, involving the payment in equal proportions of designated sums of money. It was a mere community of interest in the property, and the agreement to share the profits and losses on the sale of the land did not create a partnership. The parties were only tenants in common, and the action at law would lie. Jordan v. Soule, 79 Maine, 590; Gwinneth v. Thompson, 9 Pick. 31; Haven v. Mehlgarten, 19 Illinois, 91; Fowler v. Fowler, 50 Connecticut, 256; Dickinson v. Williams, 11 Cush. 258; Fisher v. Kinaston, 18 Vermont, 489; Fanning v. Chadwick, 3 Pick. 420; Coles v. Coles, 15 Johns. 159; Gal breath v. Moore, 2 Watts, 89; Harding v. Foxcroft, 6 Maine,

76.

The defendant has no right to complain of the action of the court in allowing the plaintiff to remit all of the verdict in excess of $4000. Probably the court thought that the ver dict embraced items which were not properly allowable under the declaration. There does not appear to be any ground for holding that the remittitur was made with a view to avoid the jurisdiction of this court.

We see no error in the action of the court in regard to the filling up of the amount in the verdict of the jury, even if the exception thereto can be considered as having been taken in time.

We have considered all the questions properly raised by the defendant, and all the alleged errors of which he has any right to complain, and see nothing in the record which would warrant the awarding by us of a new trial.

Judgment Affirmed.

Opinion of the Court.

HOME BENEFIT ASSOCIATION v. SARGENT.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK.

No. 155. Argued January 12, 1892. - Decided January 26, 1892.

A policy of life insurance provided as a condition, that death of the assured "by his own hand or act, whether voluntary or involuntary, sane or insane, at the time" was a risk not assumed by the insurer. A suit to recover the amount of the policy was tried on the theory on both sides, that death from a shot from a pistol fired by accident by the assured, was covered by the policy: Held,

2

(1) Evidence drawn out on the cross-examination of a witness, which has a bearing on the testimony given by him on his direct examination, is competent, especially where it relates to a part of the same conversation;

(2) An inquiry as to what conversation was had with the plaintiff's agent is not competent, if it does not appear what the subject of the conversation was, or what was intended to be proved by it; (3) In view of the contents of the proofs of death and of the evidence, the plaintiff was not estopped from claiming that the death of the assured was caused otherwise than by suicide, and it would not have been proper for the court to charge the jury that by the introduction of the proofs of death, the burden was put on the plaintiff to satisfy the jury, by a preponderance of evidence, that the assured died otherwise than by his own hand;

(4) The defendant having alleged in its answer, that the death of the assured was due to a cause excepted from the operation of the policy, it was not error for the court to charge the jury that the defendant was bound to establish such defence by evidence outweighing that of the plaintiff.

THE case is stated in the opinion.

Mr. Francis Lawton (with whom was Mr. Austen G. Fox on the brief) for plaintiff in error.

Mr. Miron Winslow for defendant in error.

MR. JUSTICE BLATCHFORD delivered the opinion of the court.

This is an action at law, brought in the Circuit Court of the United States for the Southern District of New York, by Hen