Opinion
December, 1894.
George Murray Brooks, for appellant.
Menken Bros., for respondent.
The complaint alleged that the $500 order upon which this action is based was made to plaintiff. This fact was expressly denied by the answer of defendant Hoople.
It was, therefore, the duty of plaintiff to establish this issue in his favor by a preponderance of proof. This he failed to do; in fact, his testimony showed that said order was made to the John R. Anderson Co., a New Jersey corporation doing business in this city.
The check given to secure the assignment of said order was also the check of said corporation.
The attempt of Anderson to show that, notwithstanding the statement in the order and check, the assignment was to him, and not to the Anderson corporation, must be considered futile by us, because it was error for the trial justice to permit the witness to answer the question as follows: "Q. The transactions with the trustees and with everybody were with yourself individually?" which was objected to upon the ground that it called for a conclusion and was incompetent.
It was error for the trial justice to have overruled the objection. It should have been sustained, and the answer not allowed.
With the answer to said question out of the record, it shows, as before stated, that the order in question was made to the Anderson Co. and its check accepted for the same.
Therefore, in our judgment, the motion made by defendant's attorney at the close of testimony for a dismissal of the complaint upon the grounds: First, that the evidence failed to show any cause of action in favor of the plaintiff against the defendant Hoople, and, second, that no title in the plaintiff to the order set up in the complaint had been shown, should have been granted, and the complaint dismissed.
It was error to direct a verdict upon the evidence in plaintiff's favor.
Judgment must be reversed and a new trial ordered.
VAN WYCK and CONLAN, JJ., concur.
Judgment reversed and new trial ordered.