
    Peter E. Roland, Appellant, v. Kate Emma Pinckney, as Executrix, Respondent.
    (New York Superior Court—General Term,
    May, 1894.)
    The production of a contract, signed by only one of the parties, raises no presumption of the existence of a counterpart.
    Mutual covenants in a contract under seal constitute the considerations on both sides, and unless there is an agreement by one of the parties there is no consideration for the covenants of the other.
    The deposition of a witness, taken before the death of one of the parties, is not inadmissible on the trial under section 829 of the Code.
    Appeal from judgment dismissing the complaint.
    Action brought against defendant’s testator in his lifetime for breach of a contract under seal between him and one Soelkey, plaintiff’s assignor, by which said Soelkey assigned to the testator the exclusive right to make, use and sell patented cowls and ventilators for the unexpired term of a certain patent, and the latter agreed to introduce these cowls and ventilators in the territory granted, and to manufacture 1,000 of them within a year from the date of the contract, and to pay a royalty on the 1,000 and all others manufactured by him.
    On the trial plaintiff produced the contract, signed only by the testator, and offered in evidence the deposition of Soelkey, taken during, the lifetime of the testator upon interrogatories and cross-interrogatories, to show that Soelkey mailed to testator letters concerning the contract, and the contents of such letters, which offer of evidence was excluded as inadmissible under section 829 of the Code.
    
      Walter J. McCoy, for appellant.
    
      Spink & Martin, for respondent.
   Per Curiam.

"With respect to the alleged agreement offered as evidence constituting proof of the existence of an agreement between Soelkey and Pinckney, it may be said that no presumption arises from it of the existence of a counterpart. The case of Hughes v. Clarke, 15 Jur. 430, to which reference was made, is not in point. Formerly each party to an indenture executed a separate deed. That part which was executed by the grantor was called the original and the rest counterparts. It is now, however, usual for all parties to execute every part; hence, a presumption arising from a usual practice to have a counterpart cannot exist here. As the complaint sets forth an agreement under seal as that for the breach of which a recovery is sought, the learned trial judge was right in his ruling when he stated that the mutual covenants constituted the considerations on both sides, and unless there was an agreement by Soelkey there was no consideration for the covenants on the part of Pinckney.

The only error at the trial was in the exclusion of some of the testimony of Soelkey as barred by section 829, Code of Civil Procedure. As the plaintiff may have been prejudiced thereby, there must be a reversal and a new trial. Macdonald v. Woodbury, 30 Hun, 35; Rice v. Motley, 24 id. 143. These cases seem to accord with the reason of the law, and we have concluded to follow them, costs to abide event.

Present: Sedgwick, Ch. J., Dugro and Gildersleeve, JJ.

Judgment reversed and new trial ordered, costs to abide event.  