McFerran v. Filbert

Mr. Justice Paxson

delivered the opinion of the court, March 5th 1883.

The single assignment in this case alleges error in the charge of the court. 'There is but slight room for criticism in the portion selected, still less when read in connection with the remainder of the charge. When the learned judge instructed the jury that under the agreement between the parties the plaintiff below “ was at liberty to go into any other business, and could give as little time to the practice of medicine as he pleased,” he but repeated what was substaniially set forth in said agreement. This is too plain for argument. But it was alleged there- was error in that portion of the charge wherein the court said : “ It is no answer to the plaintiff’s demand, for the defendant to say to the plaintiff that ho gave up the practice of medicine — that is what he intended to do. He had a right to abandon the practice of medicine. It is one thing to *78abandon tbe partnership agreement, which he could not do, and quite another thing to abandon the active practice, which he had a right to do. For doing that, he could not be held responsible by the agreement. He was free to embark in any other business he chose.’’

The learned judge, in his charge, further instructed the jury that if the plaintiff practiced medicine on hiéown account after he gave up active practice under the agreement, it would be a defence to the note, and the plaintiff could not recover.

We see no error in this. If the defendant desired more specific instruction, he should have asked for it. The distinction between abandoning the partnership agreement, and engaging in active practice under it, was clearly stated by the learned judge below. The question of the abandonment of the partnership agreement was in effect left to the jury. The defendant, having submitted no point, nor asked for any instruction, cannot now convict the court below of error for omitting to charge more fully upon this branch of the case. This rule is too familiar to need the citation of authority.

Judgment affirmed.