—It appears, by positive testimony, that the *169property of the copartnership, at the time of its dissolution, was worth the sum of $2,000, independent of the alleged exclusive right to carry on the business of the firm. It cannot be pretended that Homan did not receive an equivalent in property for the amount of the notes given in payment.
There was no such evidence of fraud or. wilful misrepresentation as would justify the finding of the jury in this case. Nor does it appear that the notes were given upon the faith of an agreement that the plaintiff would not engage in the same business in the city of New York. The defendant swears, “ plaintiff told me if I would buy his share in the cabinet business, he (plaintiff) would cease being in that trade.”
Even regarding this statement as a part consideration of the sale, it is void as a defense, in that it is unlimited as to time and place (Chappel v. Brockway, 21 Wend. 157; Dunlop v. Gregory, 10 N. Y. 243).
It may have been the honest intention of the plaintiff, at the time he made such statement, to relinquish the business in which he was then engaged. But that such intention was made a condition of the sale, for a breach of which the sale might be avoided, is not, in my judgment, established by the evidence.
The verdict is against the evidence, and although the jury have passed upon the question of fraud, it is the duty of the court to grant a new trial ( Vance v. Phillips, 6 Hill, 436).
It is true, that there was no sufficient exception taken at the trial, but where (as in this case) there is a well founded reason for believing that justice has not been done, and that the verdict was rendered on incompetent testimony, it is just and proper for the court to interpose its authority and grant relief.
The judgment appealed from should be reversed on payment of the costs of the trial, and a new trial ordered.