
    John Moffat, Plaintiff and Appellant, v. Julia A. Moffat, et al., Defendants and Respondents.
    1. In an action of an equitable nature under the Code of Procedure, a party is not entitled*as of right to a trial of issues by a Jury, on the ground that the case is one in which Courts of Equity were formerly accustomed to award issues.
    2. After the plaintiff, in an equitable action had procured an order settling issues to be tried by a Jury, the defendant successfully moved to vacate such order.
    
      Held, on appeal from a judgment therein, that the plaintiff by afterwards going to trial before a Justice of the Court without a Jury, without objecting at the time of the trial to that mode, had waived any right to have a Jury trial.
    3. By uniting in one action, claims for an accounting in respect to both real, and personal property, the plaintiff deprives himself of the right, if there be one, in respect to the personal property, to have the action tried by Jury.
    4. Before the act of 18G0, as well as since the amendment of 1862, husband and wife were not in general admissible as witnesses for or against each other.
    5. In an action in which the nature and contents of documents long since destroyed are in question, entries in the account books of the counsel who drafted the documents relating thereto, his drafts thereof and other papers drafted by him at the same time relative to the same subject, the counsel being deceased, are admissible in evidence for the purpose of corroborating the testimony of witnesses as to their recollection of the date, and contents of the missing documents.
    6. The plaintiff, by a written assignment, 'had transferred to the defendant, who was his son, a secret possessed by him for compounding certain medicines, together with the good will of a ¡business for making and vending them, then carried on by him; the consideration expressed in which was, “a reasonable sum,” to be paid to .the plaintiff by.the-defendant, for the support of the former and Ms family, so long as he should give Ms services to such business; and the business was successfully prosecuted thereafter, in the name of tlfe son exclusively, resulting in the accumulation, from its profits, of considerable real and personal estate, including the house in which they lived, the title -to which property was held by such son in his own name. A second assignment of the same secret and business was executed by the plaintiff to the defendant, nearly seven years and a half after the first, reciting the loss of the first About ten years later, and immediately after the marriage of the defendant, who, while single, had lived in the family of the plaintiff, the latter drawing enough to support such family from the profits of such business, without accounting therefor to the defendant, the plaintiff for the first time claimed an account from the defendant of the profits of such business as a partner therein, which claim was founded upon an instrument executed by the defendant a month after the date of the before mentioned second assignment, during a dangerous illness of the plaintiff, and was subsequently destroyed by the defendant. About the same time that such instrument was executed, the plaintiff accepted from the defendant, both a lease of the house in which both parties resided together, and a grant of an annuity of $5,000, during the joint lives of the plaintiff and his wife, the only consideration expressed in which, besides a nominal one, was “ natural love and affection.” The present action was brought to compel the defendant to account as a partner.
    
      Held, that in addition to the imposition upon the plaintiff by law, of the burden of proof of establishing the partnership, that the execution of the two assignments, the character of the consideration expressed in the first, the= subsequent concealment of all inteSst of the plaintiff in the profits of the business assigned, the relation of the parties, and the extraordinary nature of the alleged occasion for forming a partnership for ten years, the fact that plaintiff in collecting debts in the course of the business had made oath that he was not interested therein, the absence of proof of any previous claim of partnership, or partnership books kept, or entries made, of any control over the business or demand of an account by the plaintiff, or any account rendered to him by the defendant, sustained the defendant’s version of the character of the instrument of October, 1844, on which alone the plaintiff relied, and of the reason of its destruction as being most “consistent with the probabilities of the case, and that his testimony as to the character and destruction of it was not shaken by the plaintiff’s testimony.
    
      Held, therefore, also, that as the defendant testified that the instrument in question was an agreement by him, made during such illness of his father, that in case the latter died within five years, the former would apply half of the profits of such business for that time to the support of his own mother, the plaintiff’s wife, and his own sisters, the daughters of the plaintiff, the latter was not entitled to an account of the profits of such business, although he testified that such agreement was for a partnership for ten years from its date.
    (Before Robertson and Monell, J. J.)
    Heard, March 8, 18G3;
    
    decided, April 18, 1863.
    
      This was an appeal by the plaintiff from a judgment in favor of the defendant, entered after a Ijrial before the Court without a Jury.
    John Moffat, the plaintiff, brought this action against William B. Moffat and Julia C., his wife, to establish the existence of a copartnership agreement between himself and William, and for a dissolution and an account and a division of the assets, which consisted of both real and personal property.
    The parties being at issue as to the principal fact, i. e., the existence of the partnership, issues for trial by a Jury were framed on the plaintiff’s motion, and ordered to be tried by a Jury. But subsequently, on the defendants motion, the order for a Jury trial was vacated, and the cause directed to be tried as an issue of law at the Special Term.
    The plaintiff appealed from the latter order to the General Term, and the same, after a hearing before the whole Court, was affirmed by, as it is understood, an equally divided Court.
    The main question in the case was, whether certain articles of agreement which John Moffat and William B., his son, had entered into more than ten years before the action was brought, and which had been in the interim destroyed by the defendant William, were articles of copartnership between them or not. The plaintiff insisted that the agreement provided that the business which was then being carried on in the name of the son, should be carried on for the equal mutual benefit of both for the term of ten years. The son insisted that the agreement was only to the effect that if the father should die within five years, the son would set apart one-half of the profits of the business during the period of five years, for the future benefit and support of his mother and sisters.
    It appeared that these articles were destroyed by William some seven years after they were made, and as he alleged, at the instance of his father. «The plaintiff contradicted this, and testified that he did not know that they were destroyed until shortly before the Commencement of this action.
    The cause was tried at Special Term before Chief Justice Bosworth, without a Jury, in May, 1857.
    During the trial, Mrs. Rachel Moffat, the wife of the plaintiff, and the" mother of the defendant, was offered as a witness. The defendant’s counsel objected to her competency, and she. was rejected. The plaintiff’s counsel excepted.
    On his direct examination, John Moffat fixed the date of the alleged articles of partnership as being probably October 8, 1844. On his cross-examination he testified, when asked to state a circumstance which enabled him to fix that date, “Ihad my recollection of that being the day, and I saw on Mr. Kissam’s book where he had charged us for drawing these partnership .articles.”
    “ Ques. Where did you see Mr. Kissam’s book?
    
      “Ans. In Chambers street; Benjamin T. Kissam showed it to me.”
    • At a subsequent stage of his cross-examination, the counsel for the defendant handed to him a book in manuscript, and asked: “Is that the book you looked at in Mr. Kissam’s office?”
    
      c‘Ans. That may be the book, but I almost think it was a smaller one that I saw. I think that gentleman (pointing to Mr. Kissam, in Court) showed me the book.”
    The book was produced, and marked as an exhibit. It had in it a charge against John Moffat, dated October 8, 1844, for engrossing, &c., wills and deeds.
    In the interval between these inquiries, the following course of cross-examination was pursued:
    " “ Ques. Have you any other means of fixing the date except seeing that entry?
    “Ans. I saw other papers which Mr. Selden had drafted at that time, relative to the deed and the copartnership articles; I believe some of these papers were given to me, and I gave them to Mr. Porter; I cannot recollect what those papers were, or how many of those papers I handed to Mr. Porter.
    “ Ques. Can you in any way identify any one of the papers which you examined in that office?
    
      “Ans. I can identify that memorandum which I saw in his book.”
    The witness is shown four papers marked E, G, H, and I, and testifies that he saw those papers, with another, in Kissam’s office.
    The counsel for the defendant then offered those papers in evidence.
    The plaintiff’s counsel objected to each separately, as incompetent and irrelevant. The Court overruled the objection and admitted the evidence, and the plaintiff’s counsel excepted to the ruling as to each paper separately.
    The other portions of the testimony, so far as material to the decision, are stated in the opinion of the Chief Justice, and in the opinion of the Court on the appeal.
    The Chief Justice, after the trial before him, decided in favor of the defendants, and delivered the following opinion:
    Bosworth, Ch. J. The important question in this action is whether John and William B. Moffat formed a copartnership on or about the 8th day of October, 1844, in the business of making and vending “ Moffat’s Life Pills” and “ Phoenix Bitters,” which business then was, and since the 18th of March, 1837, had been, conducted in the name of William B. Moffat. Other questions are involved, but the fate of them depends upon the proper determination of the question whether such partnership was formed. The plaintiff insists that one was then formed, which, by the terms of the written contract then made and signed by both parties, was to continue ten years from that date, and to be prosecuted for the joint and equal benefit of both parties.
    This William B. Moffat denies. He admits that a paper was executed by the two at or about that date, but he says, that at that time his father was very ill, and was regarded as being in a dangerous condition and not likely to recover; that having such apprehension, and being desirous to have some provision made in case of such contingency, for the future support of his wife and daughters, the defendant, (meaning by “ the defendant,” when that word is hereinafter employed, William B. Moffat,) at the solicitation of, and to gratify the wishes of the plaintiff in that respect, and to quiet his apprehensions, and being willing to do so, signed an agreement to the effect that if the plaintiff should die within five years from its date, one-half of the profits of the business for the five years should belong and be appropriated to his mother and sisters for their future support.
    That agreement has been destroyed, and there is no direct evidence of its actual contents except the testimony of the plaintiff and the defendant, each of whom was sworn and examined in his own behalf on the trial of this action.
    The testimony of the one in relation to what he asserts took place between the two respecting the destruction of that agreement, is explicitly denied by the other.
    But they do not substantially disagree as to the fact that from the time that agreement was signed to the last Monday of June, 1854, no claim was directly made by the plaintiff, on the defendant, of any rights as a partner, either by assuming to control or direct the business in the presence or absence of the defendant, or by making contracts in the name of William B. Moffat, or by directing or consulting as to the mode of keeping the accounts, or by asking for a settlement of the business or a statement of any accounts as between themselves, relating to it. Still the plaintiff claims that his rights, as a partner, were admitted at all times during this period, and deposes to acts of dominion and control which, if done, and of the character alleged, and if understood by the defendant to have been done in such manner and under such circumstances as the plaintiff details, would present a general condition of things not at all incompatible with the relation of the parties to each other being such as the plaintiff alleges.
    On the last Monday of June, 1854, the defendant communicated his intention to the plaintiff of being married on the following Saturday morning. Conversations were subsequently had between them on Monday and in the course of that week, and papers were signed by the defendant and delivered to the plaintiff.
    The testimony of the one is directly in conflict with that of the other as to the nature and substance of those conyersations, and the purposes for which, and the circumstances under which, those papers were executed. If the plaintiff is correct as to what then took place, it is not an unreasonable conclusion, that his relation of what occurred in 1844 is reliable; if he is clearly inaccurate as to the transactions of June, 1854, it is difficult to come to a satisfactory conclusion that his testimony as to. what occurred in 1844 can be deemed to be as accurate as that of the defendant in relation to the same matter.
    The occurrences of June, 1854, were of a character as marked, and likely to make as vivid an impression on the memory as those of October, 1844.
    The plaintiff has less excuse for having an inaccurate recollection of them than of those of the earlier period. The latter commenced at a time and under circumstances when, according to the theory and the testimony of both parties, neither had been suspicious of the other, and both seemed willing to confide in each other’s affection and future fidelity.
    But before the last week of June, 1854, was ended, the father, according to his testimony and present recollection, became suspicious of the good faith of his son, and obtained whatever he then got in answer to his assertion of a right, and his imperative demand of a settlement of the business, as being a business in which the two had been, and then were, actually and jointly interested.
    According to the testimony of the son, no legal rights were asserted or pretended by the plaintiff, but on the contrary, what the defendant then did was done in response to a parental appeal that a provision should be made which would place the parents and sisters of the defendant beyond the contingency of being dependent upon the future wife, if the defendant should unexpectedly die without having provided for the comfortable support of his father’s family.
    The complaint in this action was verified by the plaintiff on the 12th of March, 1855. In this complaint the plaintiff avers that on so learning “ that said marriage “ was about to be solemnized, the plaintiff stated to the “ said William B. Moffat, that a settlement of their dealings, accounts and affairs ought to be had and made “ before such marriage, to which the said William B. “ Moffat assented.” “ The said William B. Moffat never- “ theless evaded any such settlement, or any measures to “ that end; and on Friday, June 30th, 1854, caused his “ attorney to bring to the office of said joint trade three ■ “ papers executed by him ” and hereinafter more particularly described. “ The plaintiff objected to said papers as “not being any settlement of their mutual dealings, or “ securing to him either his just rights, or any proper “ equivalent for the same, and wholly refused to accept “ the same as for'any such settlement, security or equiva- “ lent.”
    The answer of the defendant was verified on the 17th of November, 1855. In this answer the defendant says that “ the allegations in the said complaint that before his “ said marriage the said plaintiff stated to him that a set- “ tlement of their dealings, accounts and affairs ought to “be had and made before such marriage, or that he “ assented thereto, are each and every one of them “untrue.” “That two of the said papers were so exe- “ cuted and delivered for the considerations and purposes “ therein expressed.”
    These two papers were, jfirst a lease from the defendant to the plaintiff and his wife for their joint lives and the life of the survivor of them, of the house and premises on 17th street, opposite Union Square, for the consideration as expressed in the lease, of the rent thereby reserved, being one dollar per annum “ and also in consideration of love and affection.” The second paper was one by the terms of which the defendant “ in consideration of the natural love and affection which I ” (the defendant) “ have for my parents,” &c., and for other considerations, agreed that the plaintiff and his wife during their joint lives, and the survivor during his or her life, should be entitled to $5,000 per annum, or as near that sum as the rents to be derived from 335 Broadway could be made to produce.
    Both of these papers were under seal. The third paper was the defendant’s will.
    The testimony of each party, in relation to this transaction and subsequent ones connected with it down to the 5th of August, 1854, when the plaintiff first sued the defendant, presents their respective version of them in detail, and the statements of the one are in pointed opposition to those of. the other.
    So much of the testimony of the plaintiff in relation to these matters as it is important to state in view of the object for which reference is now made to it, was substantially as follows:
    
      “ When my son announced to me on Monday that he “ was going to get married, I told him we must settle our “ business before he got married. He said, get a lawyer “ and he can draw up papers in a couple of hours, so that “ we can settle it. I told him it could not be done. I “ told him I wanted it settled before he was married, then “ there would be no difficulty in getting her (the defendant's intended wife) to sign. He said there was no “ difficulty. I pressed him every day. I saw nothing of “ him or his lawyer until Friday r. h. Then I was taken “ by surprise. Mr. Burchard came into the office and read “ over papers to me. He read this annuity agreement “ and the lease. I sajd to the defendant that he had no “ right to give me a lease of the house, as I had as much 
      “ right to it as he had, and he knew it. Burchard said he ‘ had no agreement for me to sign. I told him I would “ sign none for him, my son, or anybody else. I told “ them I disapproved of all these proceedings. My son “ made his will at the same time, showing what he would “do for my daughters. I said he could make another “ will the next hour. When I said I disapproved of the “papers, he said, carry them up and show them to “mother. I had no alternative. I took them up and “ showed them to my wife. I do not recollect of much “ else said at this time. I was irritated.
    “ After that interview, I next saw him just before he “ was getting married, and on the morning of his mar- “ riage. The next I saw him was after he returned from “ his wedding trip. I went to the office the next morning “ after he returned, and asked for the deeds and the partnership articles,” (this refers to the papers alleged to have been executed in 1844, and to have remained in the custody of Mrs. John Moffat, until some time in 1845, when, as the plaintiff alleges, they were handed to the defendant at his request, that they might be securely preserved in his iron safe.) “ I asked him for the papers his “ mother gave him. He hemmed and hawed, and finally “ told me he had destroyed the deeds.” (The deeds were alleged to be conveyances of 371 and 375 Broadway.) “ I “ told him he had no right to do so. I scolded him very “hard. I told him he was trying to cheat me and his “ mother and sisters. I called him a cheat; and he said “ he would not be called a cheat. I said you can’t help “ yourself, you are a cheat. He then said I will give you “ a deed. I said what lawyer are you going to get to “ draw it? He said he could draw it as well as anybody. “ Yery well, I said, let us have it. Hothing more was “ said then. The next morning he brought a deed,” (being a deed of 371 and 375 Broadway, in fee,) “ and threw it “on the breakfast table when sitting at breakfast, and “ said, there is your deed. After breakfast we went up “ stairs into. my bedroom. I said, here is your will, you “ can make one the next hour. He then asked me for the “ lease and annuity agreement. I said you have no right “ to them; you have given me nothing that was not mine “ before. I said, I want the rest of my property. There “ was not a great deal more said then. I told him of the “ necessity of settling and not going to law. That I would “ not let it sleep. I would die before I would give it up. “I thought it too unjust a thing to cheat the family out “ of the property. On that morning, or the morning after “ the one on which I scolded him, he said, I will give you “ $100,000 to settle it. I said I would not take it. I “ wanted a division of the property, and my own property.” On his cross-examination the plaintiff said, among other things, the time that Bnrchard brought the lease and annuity agreement “ was the first and last time BurcKard “ was present and had business with me. I wholly refused “ to take these papers. He did not show me a draft of “ these papers on the preceding day.”
    If this statement is to be treated as substantially true, then it is not to be doubted that the plaintiff claimed, as a strict right, an equality of interest with the defendant in all the property; that the justice of this claim was practically if not expressly admitted; and the conduct of the defendant was evasive throughout, and indicated a purpose to withhold from the plaintiff that which was strictly his due. The plaintiff ought not to' be mistaken as to the substance and spirit of these alleged conversations.
    If, on the other hand, a fair view of the evidence coerces the conclusion that he asserted no such claim and pretended to no legal or equitable rights, but rather solicited some provision for himself and family as a matter of moral obligation and filial duty on the part of the defendant ; that the lease and annuity agreement were executed in answer to such a solicitation, and were read to him the day before they were executed, and were modified to meet his wishes, and were executed on a subsequent day at a time appointed for the purpose, and no objection or complaint was then made, and if made, must have been heard Tby those who were present and parties to the transaction, it would seem to be equally clear that the plaintiff is laboring under some delusion, and that his wishes and purposes have become with him convictions as to occurrences which he now believes, but erroneously, had actually transpired.
    So much of the defendant’s testimony on these points as it is material in this connection to repeat is substantially as follows:
    “ In May, 1854,1 determined to get married and told my father of it the Monday before the marriage.”
    After detailing some of the conversation between the two in relation to that event, following upon this announcement, he further testified:
    “My father said I ought to make some provision for the “ family; as, if I had children and died, the widow or they “ might turn the family all out of the house. I told him “ I was willing to do so. I asked him what he required or “ wished. He said he would consult mother about it.
    “ The next morning he said that she said she did not “ know what to do, and wanted me to propose something.
    “ I proposed the house in Union Square and $5,000 a “ year for them to live on, and for each pf my sisters' $2,500 “ a year as long as they lived. That was on Tuesday.
    “ That day I saw Mr. Brady, and he, being busy, sent “me to Mr. Burchard. I saw Burchard and told him “ what I wanted. The following Thursday he brought the “ drafts of the papers to my office. Bather, Burchard and “ I went to my private office up stairs. The papers were “ read over and explained to the plaintiff. He objected to “ one clause in the lease, and as I did not wish to be “ bothered, I told Burchard to strike it out. The following day Burchard came with Mr. Jarvis, a commissioner, “ and the papers were signed and acknowledged.
    “ On Monday, after my return from, my wedding trip, (it “ may have been on Tuesday,) he asked me for the papers “ Selden drew up. I said, 1 Do you not recollect they were “destroyed before we went to Europe.’ (That was in “ 1851.) He said, ‘ Tes, I do remember something about “ it.’ ¡Nothing more was then said on that subject. He “ did not say I had no right to destroy them. He did not “ scold at me on the subject. He said nothing of my trying to cheat him or my mother. I did not then offer “ him a deed. That was all that was said then. A day “ or two after that he said he did not. think I had given “him enough to live on in that house, that $5,000 a year “ was a mere pittance. I then asked him what he wanted. “ He said I was very rich and could afford to do better. I “ told him it was exceedingly embarrassing to have these “liens on my property. As I was bound to pay $10,000 “ a year, I proposed to substitute a deed of 371 and 375 “ Broadway as a substitute for the previous arrangement. “ He said that would be perfectly satisfactory. I then saw “ Burchard, and he drew up the deed, and I and my wife “ executed it. My father said, even if I gave him too “ much I would get my share of it at his death. Hot one “ angry word passed between us before that deed was “ given. We never had an angry word between us until “ about the 20th of July, 1854.' That deed was not deliv- “ ered in the morning. It was executed about the middle “ of the day, and delivered at tea. I threw it on the table “ and said, ‘ there it is.’ He asked my wife if she knew “ what she had been doing. She said she did. That is “ all that was said then. “ The next morning I asked him “ at his room for the previous papers, viz., the annuity “ agreement, lease, and my will. He handed me the will. “ I asked him for the others. He said, ‘ That is all I am “ going to give you now.’ I then asked him to return me “ the deed. Then we had a dispute. He said he would “ not give me back any more at present. He said I was “very rich and he wanted half of everything I had. I “ asked him then what amount he would require. He “ would not name any amount, and wanted me to propose “ one. I said I had made propositions enough. I then “ asked him if he would release me from further obliga- “ tions for $100,000. He said no. I did not offer to give “ him that sum as he stated. He said I was worth ten “ times that, and he meant to have half .of it. He said he “ thought I ought to do it because I had made my fortune “ out of the business he had given me. That is all that “ occurred then.
    “ A few days after this the plaintiff went to Saratoga. “ He returned on the first of August. He came to my “ office some time in the afternoon and asked if I had com- “ pleted the purchase of the 23d street property. I told “ him I had that morning. He requested me to assign or “ transfer it. I told him I should not do so. He said he “ would make me, and then left the office. We had “another interview before he brought his first suit. It “related to the rents of 371 and 375 Broadway falling due “ the first of August. I went to Saratoga and returned “ the following Monday about 10 p. H. The next morn- “ ing, after breakfast, as I was going up stairs my father “ met me and told me my mother wanted to see me in the “ parlor. I went there, my father immediately followed “ me in and told me he had sued me. I asked him what “ was the cause of his complaint. He said he meant to “ have half of my property, and he would drive me through “ every Oourt of Hew York until he got it.”
    Both of these stories cannot be true. If each may be supposed to have testified honestly, and believing that he was testifying truly, it must be on some theory which I am not prepared to suggest. And if I may assume the existence of that honesty and belief, still one of these statements must be discredited and rejected. If the statement of the defendant, upon the usual principles of considering evidence, must be accepted as true, then it must be deemed to be established that in June, 1854, the plaintiff’ claimed nothing as a matter of legal or equitable right, but preferred his requests on entirely incompatible grounds, and not until after he had obtained what he declared would be perfectly satisfactory as a provision for himself and family did he evince any hostile purpose, or make any claim to anything as a matter of right. •
    
      I deem it quite important to determine as satisfactorily as the whole evidence will permit, the truth in relation to the transactions from the last Monday of June, to the 20th of July, 1854. That determination must necessarily have much influence in disposing of the conflicting testimony of these parties in relation to the transactions of 1844.
    Mr. Bur chard testifies that on the last Thursday of June, 1854, he went to the defendant’s place of business with a draft, lease, annuity agreement and will, and was introduced by him to the plaintiff, and the three went to the defendant’s private office. He then read over to them these draft papers. The plaintiff objected to a clause in the lease which prohibited him or his wife from underletting without the defendant’s consent. Thereupon the defendant handed Bur chard a pen and told him to strike that clause out, which he did do, in the plaintiff’s presence. Ho other objection having been made, he left, having appointed 4 p. m. of the following day as the time when he would have the papers in a condition to be executed. In the meantime he made accurate copies of the will and lease, and changed the annuity agreement so as to charge the payment of the annuity upon different premises from those described in the draft which had been read on the previous day. On Friday 'about 4 p. m., he went with these papers to defendant’s office, in company with H. Jarvis, Jr., a commissioner of deeds, and saw both parties. He produced the papers and told them that the lease and will were exact copies of the drafts read on the previous day, with the objectionable clause stricken out of the lease. He told the plaintiff he had changed the annuity agreement, and the reason why, and then read it in the presence of both parties. The papers were then “ executed and “ delivered to. the- plaintiff.” Mr. Jarvis took defendant’s acknowledgment of the lease. Two of defendant’s clerks were called, and signed the will as subscribing witnesses. The plaintiff made no objection to the form or sufficiency of the papers. Mr. Burchard did not hear the plaintiff on either day make" any complaints or objections, nor anj such remarks as the plaintiff testified were made by him, nor did he tell the plaintiff that he had no agreement for him to sign. After the papers were executed, the defendant paid to Burchard his bill, and after that produced to him an agreement in reference to the purchase of the Twenty-third street property, and wished him to search the title, and Burchard took the paper with him for that purpose. “In the course of that interview, the doctor “ told me he had agreed to pay $40,000 for this property, “ and asked me what I thought of it. I said I thought it “ was cheap. The doctor said, there, father, what do you “ think of that ? I think the plaintiff said something in “ answer; what, I do not recollect.”
    These, papers were executed on the first floor of the building on which some clerks were employed at the time at their desks, being the floor on which the defendant transacted his business with those who dealt with him.
    Mr. Jarvis, and Mr. Isaac Smith, one of the subscribing witnesses to the will, gave testimony concurring with that of Mr. Burchard as to what occurred on the day the papers" were executed.
    There is no testimony which conflicts with that of the defendant and Burchard, Jarvis and Smith, except that of the plaintiff.
    Yielding, as I must do, to the strength of the testimony on the part of the defendant, the conclusion cannot be resisted that his statement of what occurred between the last Monday of June, and the 20th of July, 1854, inclusive, is substantially correct.
    Having reached this conclusion as to those transactions, it seems to me pertinent to observe that the plaintiff’s conduct in respect to them was somewhat peculiar, on his own theory. On that theory, up to the day on which his son informed him of his purpose to be married, they had lived on terms of harmony, friendship and confidence. They were partners in a prosperous business for a term of years then unexpired. Why, in the five days to elapse before the intended marriage, it was deemed necessary that their business should be settled and the property divided, it is not easy to conjecture. They were living together harmoniously as one family, in a residence sufficiently expensive to promote happiness if it can be augmented by such means; and the defendant was intending to continue to reside there. The evidence indicates that the plaintiff had been permitted to live as he chose, not only without complaint from the defendant, but, as it would seem, with his cheerful approbation.
    So, on the other hand, if the plaintiff did not feel that he had any strict legal or equitable rights to any part of the property of his son, but felt that the son was under strong moral obligations to be liberal with his father’s family, it is difficult to discover any grounds for then apprehending that his son would fail or become indisposed to do anything which a just sense of moral obligation or filial duty might be expected to suggest as appropriate or reasonable.
    Whichever theory is the true one, the proceedings of the plaintiff, under the circumstances, were not merely impetuous, but they were very peculiar.
    The testimony of the plaintiff is express and explicit that from the 18th of March, 1837, when he sold and transferred to the defendant the knowledge of the secret and process of compounding these medicines, and all interest in the business and in the right to make and vend the medicines, until.the 8th of October, 1844, he had no interest or rights, legal or equitable, in the business or in the profits thereof. That up to the latter date, the defendant was under no obligation amounting to a legal or equitable duty, to allow the plaintiff any part of the profits of the business. By an instrument dated the first of September, 1844, reciting the making and loss of the original instrument of transfer, the plaintiff confirmed the original sale and transfer, and assigned and transferred anew all his right, title and interest and property in the medicines and in the secret and art of making them, and in the right to make and sell them to the defendant.
    As to the transactions of the 8 th of October, 1844, if that was the day they were consummated, the story of either, as to what then occurred, is not so improbable as to be incredible. Considering all the circumstances then existing, and the relations in which the parties stood to each other, and the unbroken confidence which each had, at all times, previously manifested for the other, the defendant’s statement of what took place, and of the objects intended to be thereby secured, has more of probability in its favor than that of the plaintiff.
    The plaintiff was extremely feeble and his life was considered in danger. To contract, under such circumstances, for a partnership with him for the term of ten years thereafter would be somewhat contrary to the usual course of business. But under such circumstances, considering the affection of the son for the father and the family, and the strong moral obligations under which he was, by rear son of the important services they had rendered in advancing the business to a prosperous condition, he could afford, and might naturally be expected to be disposed, on being solicited, to make such a provision by way of securing a future support to the family as a father in such a critical state might think it reasonable to propose.
    Hence, an agreement that if the father should die in five years, one-half of the gains and profits of the business during that period should be set apart and appropriated to the future support of the mother and sisters of the defendant, was natural; and such a provision, (if the future five years of the business should continue as prosperous as it then was,) in connection with the further provisions then made, and to have effect on the same event, might well be supposed to be sufficient.
    The form of the deed of 371 and 375 Broadway, then executed by the defendant, if in a form to make it in legal effect such a deed as either party describes, rather favors such a view of the transaction, than the theory that the real estate which had then been acquired was actually divided with a view to give the plaintiff a right, either in fee or of disposition, of one part of it, and to convert the business of making and vending the medicines, into one in which each was.to be and become an equal partner and proprietor with the other.
    If such an agreement of copartnership as the plaintiff describes was then executed, then from’ that time forward he had not only the same interest as the defendant in the future business and its profits, but also in all uncollected demands for medicines previously sold.
    And yet .in 1845,1846 and 1847, the plaintiff was examined as a witness for the defendant in suits brought by him to recover for medicines sold prior to the 8th of October, 1844, and although examined pointedly as to his interest in the business, and in the event of the suits or some of them', his testimony was unqualified that he had no interest in either and at no time had been interested in the business since his sale and transfer thereof in 1837.
    The explanation given for thus testifying may be correct, yet if it be kept in -mind that the plaintiff now claims not only that he was interested in the business at the time he was examined, but also in the recovery in each particular ease, the want of attention and discrimination which such evidence demonstrates, cannot be entirely overlooked in the effort to ascertain, through the testimony of the same witness given at a much later period, and the other evidence in the case, what was, in fact, the truth in relation to that matter.
    Such drafts of papers as .have been found and may be deemed to have been prepared in or about October, 1844, so far as their terms indicate the purpose for which they were drawn, indicate a purpose to provide for the then future support of the plaintiff and his wife and daughters, and not to commit to him any such control over the property which was to furnish such support as would enable him to defeat the object in view. • The draft trust deed óf October, 1844, in the handwriting of Mr. and Mrs. Selden and of Mr. Kissam,,seems to have been prepared, judging the intent of it from its terms, with that view.
    The mode of conducting the business subsequent to October, 1844, furnishes no evidence to support the present claims of the plaintiff. While I concede that there is nothing in respect to that which the plaintiff did or omitted to do between the 8th of October, 1844, and the 26th of June, 1854, so peculiar as of itself to render the existence of such business relations between himself and his son, as he asserts did exist, incredible, yet it is-singular that during all that time nothing should have been done in the presence or absence of the son, or said in his presence, which would tend to support his belief in, or the defendant’s recognition of, the existence of the claims now sought to be enforced.
    The entire absence of acts or words of that character upon the evidence as it stands, is in marked contrast with his efforts to have what he now claims to be his rights definitely settled and secured according to his testimony of what occurred immediately after he was informed of his son’s purpose to marry.
    And if it be assumed or deemed to be established that the statement by the defendant of what occurred when that information was given is true, the anxiety then manifested to secure an ample provision for the future wants of himself and his wife and daughters out of the estate of the defendant before the marriage should be solemnized, has but little in it in keeping with the confident indifference with which he had seen the son purchase and invest in his own name during the previous ten years, without claiming the right or expressing a wish that the title to even a single lot should be vested in himself.
    The whole evidence, without stating and commenting upon the items of it in detail, has produced a conviction, unshaken by any doubts, that the plaintiff has wholly failed to prove the case stated in his complaint, and that the material allegations of the answer are substantially true.
    Conceding that the defendant, as the price of the purchase of the secret, in addition to paying the debts in which the attempt to start the business had involved it, was to provide comfortabty for his father’s family, I see nothing to indicate that he had not thus provided for the members of it at all times prior to the 20th of July, 1854.
    The provision then made by which property was conveyed to the plaintiff in fee worth about the sum of $120,000, and which produces annual rent of over $9,000 payable quarterly, would seem to be sufficient to enable four persons to live with tolerable comfort, and without much reason to apprehend any suffering from the want of means to provide ordinary comforts. If, in addition to this, the plaintiff has the enjoyment of the house on Union Square, and all taxes and assessments on it paid, at the cost of one dollar’s rent per annum, the means of support will be still further improved.
    If his family can live on the rents which the property conveyed to him produces, he will be able to leave, on the decease of himself and his wife, to each of his daughters a property worth some $60,000, which will probably be ample to relieve them from all sense of dependence or personal anxiety about their future support.
    I credit the testimony that the plaintiff accepted the provision made for him, as entirely satisfactory.
    Judgment must be entered in favor of the defendants, and it must contain appropriate provisions as to the medicines sold by the plaintiff to Fahnestock, Hull & Co., in August, 1854, and in relation to the surrender of the annuity agreement of the 30th of August, 1854.
    On June 30, 1857, judgment was entered denying the relief sought by the plaintiff, directing the plaintiff to pay to the defendant a certain sum of $5,000, mentioned in the pleadings, and costs, and also directing that a certain grant of a life annuity of $5,000 per annum to the plaintiff and his wife, be delivered up and canceled.
    A case with exceptions having been made by plaintiff he appealed upon the law and the facts to the GeneraJ Term.
    The defendant, William B. Moffat, having died since the appeal, the same was revived by an order of Court against Ms executors, heirs and devisees.
    
      
      Charles O’Conor, for plaintiff, appellant.
    I. If the Court should now be of opinion that the plaintiff was entitled to a Jury trial, the judgment should be reversed, and such trial awarded, instead of leaving the error heretofore committed in that respect, to be corrected by appeal to the Court of Appeals. Interlocutory orders affecting the merits and of an appealable nature, remain sub judice until the final judgment upon the whole case. (Jaques v. Meth. Ep. Ch., 17 Johns., 559; Price, Ex’r, v. Nesbitt, 1 Hill’s So. Car. Ch., 457.)
    1. A party cannot appeal from an order awarding an issue. (Candee v. Lord, 2 Comst., 269.)
    2. But a refusal to award an issue is ground of appeal. (Townsend v. Graves, 3 Paige, 457; Belknap v. Trimble, 3 Paige, 577.)
    TT. The refusal to award a Jury trial was a substantial error.
    1. It has long been the settled practice in equity cases to award issues on the prayer of either party, in control versies of this nature. (Peacock v. Peacock, 16 Vesey, 52, 53; S. C., 2 Camp., 45; De Tastet v. Bordenave, Jacob, 516; Flagg v. Mann, 2 Sumner, 526; Frank v. Mainwaring, 2 Beavan, 124; Rhodes v. De Beauvoir, 6 Cl. & Fin., 537; Collins v. Lawrey, 6 Bro. P. C., 469, 470, Dublin ed.; Norman v. Morrell, 4 Vesey, 770; Del. & Hud. Canal Co. v. N. Y. & Erie R. R. Co., 9 Paige, 332; Jewett v. Palmer, 7 Johns. Ch., 68.)
    
      % In the present case, John Moffat had an absolute constitutional right to a Jury trial on the principal question, i. e., whether the alleged partnership existed. It is only in cases of “strictly equitable cognizance” that a party asking it can be denied a Jury trial. (Clapper v. House, 6 Paige Ch., 153; Wilkin v. Wilkin, 1 Johns. Ch., 117.)
    (a.) By the Constitution the right of Jury trial was guaranteed to the citizen, and made inviolable.
    
      (b.) But for the Code of Procedure, John Moffat could have brought the common law action account; and therein he would have been entitled to a Jury trial whether or not the alleged partnership existed. (Appleby v. Brown, 24 N. Y. R., 143; not a tripartite partnership, as in 3 Dana, [Ky.,] 333.)
    
      (c.) Though, in that action, he could not have reached lands in which the copartnership funds were invested, yet he could have had judgment quod computet, and by force thereof, he could have recovered his share of the personal assets of the partnership.
    
      (d.) After such judgment, in that action, if perfect justice was not attained, the equity Court would have been open for his relief. And the judgment at law establishing the partnership, would have been conclusive between the parties as evidence iu the equity suit. (Smith v. Kernochen, 7 How. U. S. R., 198; Gardner v. Buckbee, 3 Cow., 121.)
    (ie.) By commingling legal and equitable forms, the Code compelled the plaintiff to demand his whole relief in one action ; and in due obedience to the Constitution, it necessarily imposed upon the Court, if the plaintiff required it, the duty of awarding to him a Jury trial on the common law branch of his case. That was, indeed, the foundation of his whole claim.
    III. The copartnership was established by perfect and complete proof. And the counter-evidence was of no weight.
    The destruction of the articles of partnership is a circumstance perfectly fatal to the defense.
    IV. Mrs. Rachel Moffat was a competent witness.
    V. The accounts of Mr. Selden were not competent evidence against the plaintiff.
    1. The fact that the plaintiff saw or read them in the office of Mr. Kissam, did not make them evidence against him.
    2. They were very loose and inexact papers. It is impossible to tell what influence they may have had upon the mind of the Judge in weighing the relative claims to credit of the father and son.
    
      YI. The deed for 371 and 375 Broadway was duly executed, acknowledged and delivered. The consideration expressed in the instrument was a nominal pecuniary sum. There was no evidence that it was given or accepted in lieu of the annuity, except Wm. B. Moffat’s naked, unsupported oath. For many reasons the decree canceling the annuity is unjust.
    The judgment should be reversed, with a direction that the question of partnership be tried by Jury.
    
      James T. Brady, for defendants, respondents;—
    Insisted that the only questions in the case were matters purely of fact depending largely on the credibility of witnesses, and that the decision should, under the circumstances, be final and conclusive; and further, that on a review of the evidence in detail, it was clearly in accordance with the truth and justice of the case.
   By the Court—Robertson, J.

'The only questions of law raised in this case are, the refusal to grant a Jury trial, the exclusion of the plaintiff’s wife as a witness, and the admission of Mr. Selden’s account books as evidence.

The practice of Courts of equity in awarding issues in cases of fraud, or nicely balanced testimony, or the like, does not confer on either party an absolute right to a trial by Jury. Whenever a Court of equity felt the necessity of the practical aid of twelve men taken from the mass of the community, and accustomed to scan nicely the conduct of mankind in daily intercourse and constant multiplied transactions with them, from its less familiarity with discovering and weighing secret motives of action, and measuring the evidence of them as it appears in men’s ordinary conduct and conversation, it adopted such assistance, but not as an absolute duty to accept it. It is true, they found that in certain classes of cases such assistance was beneficial-, but I do not find any principle compelling a Court to avail itself of such assistance. It was, therefore, in most cases, a matter of discretion and not of right.

But it is contended that the peculiar character of the claim here would have entitled the plaintiff to a trial by Jury before the adoption of the present Constitution of this State, and therefore he was entitled to it here. I do not find in the case that any objection was made to the trial of the issues without a Jury, at the time of such trial. The plaintiff offered his testimony, and the cause proceeded without objection or protest. The Constitution provides that a trial by Jury may be waived in such manner as the Legislature may prescribe. (Art. 1, sec. 2.) The Code of Procedure, in terms, only provides for a waiver by a failure to appear, by filing a written consent, or by oral consent in open court, entered on the minutes; but it has been settled that entering on a trial without objection is a waiver. (Greason v. Keteltas, 17 N. Y. R., 498.) If the plaintiff felt confident that he was entitled tó a Jury trial, he might have refused to appear; but having-taken the chance of a decision in his favor by a Jury of one, he must abide by the consequences. If the plaintiff had confined himself to an action for an accounting as to personalty only, he might possibly have been entitled to a trial by Jury, as a substitute for the action of account; but he has gone upon the equity side for relief as to real estate, and, having joined the two, has deprived himself of his right of trial by Jury. The very fact that he was entitled to different modes of trial as to the two different kinds of property would probably have entitled him to split up his cause of action into, two suits. (See Greason v. Ketaltas, ubi sup.)

In reg’ard to the admissibility of the plaintiff’s wife as a witness, the Legislature of this State, in 1862, (Laws of 1862, p. 858, § 31,) struck off the tag which had been fastened in 1860, to a previous amendment of section 399 of the Code, (Laws of 1860, p. 787, § 12,) under which attempts had been made to invade the sanctity of the domestic hearth, and introduce distrust by making husband and wife witnesses for and against each other. At the time of the trial of this case in 1857, there was no foundation for any such rule.

The entries in the account books of Mr. Selden, upon an inspection of which the plaintiff determined the date of the instrument of 1844, and corrected or refreshed his memory, were admissible in determining what confidence was to be placed in his statement. In connection with the fact testified to by both parties, of his employment in drawing the instrument, and the production of the draft of a settlement prepared by him, corroborating thereby the defendant’s statement as to the purpose and contents of the instrument thus drawn, they were valuable adminicula of evidence. They were also regularly, although perhaps indefinitely, made in the ordinary course of business, by a-deceased person. Had they been very precise as to the contents of the documents, they might have been a subject of suspicion.

The legal objections being thus disposed of, it remains only to determine the questions of fact. The only real issue affecting the plaintiff’s right to affirmative relief, is the contents of the instrument of 1844, disposing of the profits of the business carried on by the defendant William B. Moffat, (hereinafter designated simply as the defendant.) The evidence in regard to all other matters is only important as shedding light upon those contents. The relationship of the parties, the defendant’s age, early education and career, the plaintiff’s pecuniary embarrassment, and bankrupt discharge, his transfer of his recipes to the defendant, and the consideration of such transfer, the interference or acts of both in the business in question, and finally their mode of life for seven years after such transfer, are only valuable so far as they furnish some probability in regard to such contents. In that view, they show either a secret trust in the defendant for his father’s benefit, out of the reach of his creditors, all that time conferring on the latter a right to a definite share of the profits or a mere claim of gratitude and filial affection, only morally binding on the son, but of so strong an influence as to incline him, whenever requested so to do, to place his relations with the plaintiff, in regard to the support of himself and his family, on a more precise and definite footing. So, too, the transactions ot the months of June and July, 1854, between the parties are only important so far as they illuminate the transactions of ten years before, and determine whether the parties had been partners during the intervening time. They, in fact, either show a continuation of the same ready disposition by the defendant to provide by formal instruments for the liberal support of his father’s family, whenever required, or are a tardy recognition of the plaintiff’s legal rights as fixed ten years previously; and do reluctant and partial justice for endangering them by his destruction of the documents which created them, when confided to his filial care and fidelity, and that, too, only when wrung from him by the expostulations and denunciations of an indignant and outraged parent and benefactor.

Ho intendment can of course be made in favor of any person in reference to the contents of the instrument of 1844, by reason of their destruction by the defendant, except such person is proved to have been interested. The only proof of the plaintiff’s interest is his testimony, and perhaps that of Mr. Kissam, presently to be alluded to. If his testimony is more reliable than the defendant’s, we have sufficient positive proof of such contents without any presumption; if not, it would be established that he had no interest.

Both parties agree that the canceled instrTiment of 1844 was a disposition of rents and profits. The only questions respecting it were whether it was absolute or conditional, and.for the benefit of the plaintiff or of his family. Within a month before it was executed, the plaintiff had executed a new assignment, in place of a lost one executed seven years before, of the secret and recipes, whose use was to form the subject of the intended business. By the rentals in that, it appeared that the defendant had thus far furnished the “ reasonable sum for the support of ” his father and his family so long as he gave his services in carrying on the business which was the consideration for the original assignment. Upon that, the defendant was bound by an implied covenant to furnish that support so long as the plaintiff gave such services ; but the death of the latter would put an end to the obligation. It would, therefore, have been a matter of some consequence at any time to place the support of the family beyond the reach of such contingency.

The plaintiff could not have delayed a proposal to form a partnership, to that time, by reason of his pecuniary embarrassments, since he had been discharged two years before; just after which he took from the defendant a power of attorney, and acted under it as his agent for nearly a year, while the latter was abroad. The plaintiff, during that time, never applied to the defendant either to form a partnership or make a formal provision for his family, in case of an accident to the defendant in his stay abroad. Nor were any arrangements made, or any application to the defendant, for any fixed provision for his father or his family, for two years afterward, until September, 1844. On the first of that month his father executed the second assignment before mentioned, trusting the support of himself and his family to the obligation contained in it. On the seventh, the defendant executed his will, in which he provided solely for his father’s family, which was read over to the plaintiff when the October instruments were executed. In the same month (September) the jfiaintiff, as he testifies, apjfiied to his son to make some provision for his mother and sisters. He was himself then laboring under a dangerous and alarming illness, from which he seemed likely to die, having been confined to the house since May previous, when he met with a serious accident, and was so reduced and weak as to be confined to his bed, and unable even to receive and hold the paj)ers then executed. While he remained in that condition, on the eighth of the next month, (October,) the defendant executed a deed of trust of two houses in Broadway (371 and 375) to a trustee, in trust for his mother during her life, and after her death for her husband, with power to him first, and in case of his default, to her, to appoint three undivided fourths of them among the other children of the plaintiff, conforming in that respect to the will of the defendant, made in September previous, except that in case of his surviving his parents, he, by that, disposed of all his property in trust for his sisters. At the same time, and on the same occasion, the instrument in controversy was executed and delivered. The plaintiff testifies. that both those documents, after being executed, were delivered by the counsel who drew them, not to him but to his wife, with the direction to take care of them, because they were valuable to her.. She locked them up in her bureau. They never were recorded. The plaintiff never saw them or. inquired for them for two years, when he proposed to'put them in his son’s custody. He neglected then to inquire after them for eight years; no change having taken place in their mode of life, each party taking, as before, what money they desired from the profits of the business, no entries being made, and no accounts stated, rendered or required of the partnership. The defendant resided with the plaintiff, and the latter supported his whole family from the profits without an account. When informed of the destruction of the supposed partnership agreement, the plaintiff only remarked that the defendant had no right to do it; it was a saucy thing for him to do, although he had accused him the day before, in reference to the destruction of the deed of trust, of an attempt to defraud his mother and sisters as well as himself, (the plaintiff.)

Upon this state of facts, the question presents itself, whether the instrument disposing of half of the profits of the business for some time was for the same purpose and of the same character as the deed of trust executed simultaneously or not. Did it make the plaintiff a partner with the defendant, or assign such profits to provide for his family ? So far as the plaintiff’s right to any relief is concerned, it depends upon that question, the duration of the appropriation or its conditional character only affects the extent of that relief. The condition could, in fact, only bear upon the right to destroy, as the right of action would be in Mrs. Moffat and her daughters.

I do not understand the plaintiff as undertaking to testify that any transfer of the capital stock in the business was made to him in the agreement; he says expressly that nothing was said in it about capital, which he attempts to explain afterward as meaning money. So, too, I do not understand the defendant as testifying that any condition that such instrument and deed were to be void if his father lived five years, was embodied in either instrument then executed.

The plaintiff claims, in his complaint, that lots Hos. 371 and 375 Broadway were agreed to be conveyed to him at the time of making the partnership agreement, and were in fact so conveyed to him; that the partnership profits were invested in land, whose title was taken in the name of the defendant, but whose rents and profits were carried into such partnership business; that the defendant had always recognized his equal interest in the real estate. Thus making it appear that it was an absolute conveyance to him. So, too, as he stated on his examination as a witness for himself, he applied to the defendant merely to settle their business and divide their property before his marriage, to prevent auy difficulty in getting the wife of the latter to sign. And again, after the defendant’s marriage, he, the plaintiff, without specifying what it was, demanded the rest of his property, after he had obtained a deed to himself of Hos. 371 and 375 Broadway. In all this he made no mention of the interest of his family under the deed of trust of 1844, but claimed the profits as his own, except when he charged his son with trying to cheat that family. He clearly was not entitled to .any gains made out of the rent of that property if the settlement was valid and unconditional.

But in fact the plaintiff never called for a,ny accounting. If the trust deed of 1844 was unconditional, neither party-had a right to use the rents of the houses in their partnership business at any time. The absolute deed to the plaintiff was a violation of the rights of the wife and children, only to be repaired by his making a settlement upon them precisely similar to that in the missing deed of trust.

The plaintiff, since 1844, was examined as a witness in three different suits brought by the defendant, and testified to his own want of interest in the business since 1837. In the first, (which was against one Lace,) he testified, in 1846, that he had no interest in the business carried on at 335 Broadway, (the defendant’s place of business,) or in the event of that suit; and that he had sold out all his interest to his son in 1837. In the second, (against one Green,) he testified that the defendant was (then) engaged in business on his own account solely, and was not connected with any other person in prosecution of such business, and that he (the plaintiff) was not interested in such business. In the third, (against one Phelps,) he testified that since March, 1837, he had had nothing to do with such medicines, and had no interest therein or in the sale thereof to the defendant in such suit. As such actions referred to transactions before 1844, the plaintiff sought to explain his testimony, not very satisfactorily, however, as being only intended to apply to such transactions, although his expressions were general.

The testimony of Mr. Kissam, who drew the instrument in question, does not aid .us a great deal in determining its contents. He says he drew certain deeds and articles of copartnership between the parties, executed in the fall of 1844. “ There was an agreement for a partnership—or joint business—between the parties. He Itnew nothing “further of it, than that it was betiveen them. He did not “ recollect its duration or the interest of either, except that “ the business was to be carried on in the name of the “ defendant; the plaintiff was to be a silent partner. He “ thought it referred to a business already established; “ the profits were to be shared between the parties; the pro- “ portions he could not recollect.” On his cross-examination he stated that, according to his best recollection, such agreement was “made as part of an arrangement “ between the plaintiff and defendant, by which there was “ to be a provision made for the family, or heirs, or next of “ Icin of the plaintiff, in the event of his death, out of the “property of the defendant.”

From this last testimony it is very plain that the agreement in question could not have been one which would have terminated with the death of the plaintiff, as a partnership agreement would have done. It is also in the highest degree improbable that a partnership would have been formed by the defendant with a person in the condition in which the plaintiff then was, or that the latter would have desired to form one. If it referred to the profits, therefore, at all, it must have been an assignment or covenant to pay absolutely some part of the profits to the plaintiff for some purpose, which was the support of his family. The plaintiff's case is based wholly upon a partnership, not an assignment interest; failing that, his complaint should have been dismissed.

The paramount and insuperable difficulty in the plaintiff’s whole case, is that in his account of the transaction which takes the provision from his wife and children and vests it in himself, he is unable to assign any reason or motive for forming a'partnership in October, 1844, which would not apply with equal or greater force before; or to explain why he formed one when in so precarious a condition of health; besides that, he does not state why he allowed the only copy of an executory agreement to remain so long uninquired after in the hands of the party by and with whom it was made; why he never called for any account or settlement until the term of the partnership, as he states in his complaint, had expired, and why, even then, he only asked for a division of real estate. He acted neither as a confiding parent nor as a partner anxious to guard against accidents. In the plaintiff’s complaint against the defendant, in the action brought in August, 1854, he states that in 1844 and for several years previous, the business of preparing and vending the medicines in question had been carried on by him and his son, in the name of the latter, but for their joint and equal benefit, and that sometime in that year articles of copartnership, making it thus* a mere continuation, were signed by them. In this action the plaintiff states in the complaint, that he and his son entered yito a partnership agreement “/or certain good and sufficient causes and con- siderations them thereunto respectively moving.” On his examination as a witness he was unable to give any reason why he had never claimed any interest in the business from his discharge in bankruptcy to the autumn of 1844, and yet ask for it then. The only reason he assigned was confidence in his son; but he did not allege any loss of that confidence, or any impending event that might render a partnership useful or desirable with one in whom he had lost confidence. When the defendant went abroad in 1842, his father acted under his power of attorney without asking for any permanent interest. The plaintiff’s statement, therefore, is simply reduced to this: for seven years he confided in a son and in his undertaking to support him and his family; so much so as not to ask to interfere in the conduct of the business or to share in the profits as part owner; suddenly, after two years’ release from pecuniary embarrassment, on occasion of his son’s making a provision for his mother and sisters out of the property he had accumulated, and as part of a general „ arrangement to provide for them, as testified to by Mr. Kissam, he asked and received from his son an agreement to take him into partnership for ten years, weak and prostrated as he was, which partnership was altogether likely to be speedily dissolved by his death. The defendant’s statements of the object and cause of executing the instruments, I cannot but think more consistent and probable.

Unless the destruction of the instruments of 1844 was willful and malicious, there is no room for the presumption usually indulged in against the destroyer. The prompt and frank avowal by the defendant, even according to the plaintiff, of their destruction, without equivocation or evasion, might not alone have saved him from the consequences of the crime of getting into his possession and destroying instruments to his prejudice. (People v. Call, 1 Den., 120.) The subsisting relations between the parties, the unvaried mode of life, the .unbroken confidence and affection, the- continuance of the same patriarchal plan of members of the family drawing from the same purse, as before, without an account asked or rendered, the restoration of the plaintiff to health, the provision against accidents by the defendant’s will, which remained unchanged, may naturally have induced the defendant to consider those old documents, which had not been inquired for for ten years, and under which nothing had been done, as useless. The plaintiff’s remark, when he discovered the destruction of the agreement, was too mild, if he thought the defendant meant willfully to destroy the evidence of his liability. The Court can hardly be expected to suspect what he did not. I think, therefore, that the destruction of such papers was not from intention, but a disbelief in their value; equivalent to an accident, and not raising any presumption.

But even if there were no extenuating circumstances to deprive the destruction of the papers in question of the character of a spoliation, the mere destruction or withholding an instrument will not always supply the absence of proof of its contents, or corroborate the evidence of an interested witness in regard to them. The presumption arising therefrom may, in some cases, determine the general character of a paper destroyed or withheld, or reduce to certainty what is equivocal, vague or uncertain, or complete what is imperfect; but it does not corroborate whatever the party prejudiced by tlie destruction may testify to be the contents. The document in this case omitted to be produced is stated by Mr. Kissam to have been one of several to provide for the defendant’s mother and sisters, and is claimed to have been destroyed by the plaintiff’s directions. From its mere non-production we cannot presume that it was a partnership agreement with the plaintiff any more than any other kind of agreement.

The widely differing accounts of the transaction in June and July, 1854, between the parties, as given by them, and the degree of corroboration they severally receive from other evidence, are important in fixing their relative reliability as witnesses, and, of course, that of their testimony in regard to the contents of the instrument of 1844, and the right of the defendant to affirmative relief. The conduct of the parties and the nature of their intercourse at the interviews when the lease and annuity were discussed and executed, is particularly important. At that time the plaintiff, as he states, knew nothing of the non-existence of the deed of trust and the other instrument of 1844; he therefore did not doubt that he had the evidence of his rights as a partner; he also must have believed, as he states in his present complaint, that the term of the partnership had expired; he knew his son was to be married within a week, and forthwith demanded of him a settlement of their business and a division before the marriage. The delivery of a lease for life of a valuable house occupied by them jointly, and the annuity of five thousand dollars just before the marriage, ought naturally to have produced some confidence in the good intentions of the defendant after marriage, and to have induced a parent not to urge him on the eve of it abruptly to settle an account of ten years standing, if he believed him to intend to act honestly or fairly. A voluntary and cheerful acceptance of those papers would give color to the existence and continuation not only of that confidence, but also of the equally friendly mode in which the subsequent deed would probably be received.

If the plaintiff’s anger and suspicion, on the 30th of June, for the supposed evasion by the defendant of any accountability, be laid out of view, the suddenness of the former’s hurst of passion, immediately after the return of the latter from his wedding tour, upon his frank avowal of having destroyed an unrecorded settlement of his property on his mother and sisters, ten years old, and not spoken of for eight years, during which time the rents of the settled property had, with the plaintiff’s knowledge, been risked in business, becomes inexplicable, particularly when we consider the previous relations, mode of life and mutual conduct of the parties. That storm of indignation and reproach becomes, in turn, equally necessary to account for the new deed to the plaintiff of the settled .property. The lawsuit of August follows swiftly the rupture on the 26th of July, growing* out of the defendant taking, in his own name, instead of his sisters’, a title he had promised to place in his father’s. That rupture is rendered imminent by the neglect of the defendant to transfer some other property to the plaintiff, the indignation aroused on the discovery of the loss of the deeds, and denunciation of th,e defendant after his marriage, and expression of dissatisfaction before. All this seems necessary to account for the rapid progress of alienation between a father and son who had lived together over a third of a century in amity. In one short month a son, living in harmony with his father, in a house bought by himself, and allowing the latter to take what he pleased from the profits of his busi- * ness, without stint or account, who refused scarcelycanything demanded, settled the house he lived in on his parents, and conveyed a valuable piece of property, is suspected of dishonesty, denounced as a cheat, broken with and brought into a court of justice by his father. The truth of the whole of that picture depends upon the plaintiff’s belief of the defendant’s sinister purpose in not arranging matters with him before the marriage, his exhibition of that belief in his demeanor towards him, and the degree of spontaneity in accepting the lease and annuity. The plaintiff alleges when those instruments were presented to him, although he admits they were read to him, that he exhibited considerable temper; that he refused to receive them; that he told the defendant he had no business to give him the lease of a house which he knew the plaintiff had as much right to as he (the defendant) had; also, that he never made any objection to any clause in the lease, and that there was but one interview. Mr. Burchard testifies there were two. interviews; that lie explained the papers to the plaintiff, who objected to a clause preventing him from conveying his interest without his son’s consent; that he took them away and made an appointment fgr next day; drew a new lease with the objectionable clause omitted; also a new annuity deed; called again with Mr. Jarvis, the commissioner; had them executed in the plaintiff’s presence, and delivered them to him; he heard no such remark as the plaintiff swears to, and evidently did not perceive any ill feeling; he even testifies to friendly conversation between the parties. Mr. Smith, who was present, perceived no unfriendly feeling, and Mr. Jarvis testifies to the explanation of the papers. The defendant’s testimony is also adverse to the plaintiff’s statement. The plaintiff’s treatment of the defendant on his marriage, his permitting him to return to his house, the continuance of friendly feeling, as evidenced by the letter of the 26th of July, are hostile to the plaintiff’s narrative of his conduct, in the interview of the 30th of June, unless he be of an irascible and impatient temper; if so, his statement of an interview in which it might be aroused, is greatly to be distrusted. But in all the plaintiff’s testimony there is not an expression of the defendant’s indicating an intention to do anything short of full justice; not a disrespectful word; not even an answer to the torrent of reproach on the discovery of the destruction of the deed of trust of 1844. He gave the plaintiff the new deed the next day. There is, therefore, no evidence in the case to sustain the plaintiff’s theory of his early discovery of the defendant’s endeavor to defraud him; his expression of dissatisfaction at it, and his having wrung the deed of 1854, or the other instruments, from him, by denunciations and reproaches. It is not necessary to furnish a theory to account for his mistake, if it be one; it is only necessary to show that the defendant’s statement is more consistent with probability, and corroborated by other witnesses in material points.

I am fully satisfied, therefore, that the instrument executed in the fall of 1844, disposing of the profits of the defendant’s business for a limited time, in the midst of the plaintiff’s prostration by sickness, and alleged to be delivered to his wife as valuable to her, along with a deed of trust, as part of an arrangement for the support of herself and her family, was not a partnership agreement. In all other respects, I concur with the opinion delivered at Special Term, and subscribe to the reasonings.

I, therefore, am in favor of affirming "the judgment at Special Term, with costs.  