The facts of this case are somewhat complicated, and are not stated with much clearness in the bill of exceptions. The transaction of October 23, 1865, was in form a sale by the firm of W. W. Jones & Company to the defendant Frank Huntress. So far as Jones was concerned, and to the extent of his interest, it was a sale in fact as well as in form. But so far as the plaintiff, who *125was the other partner in that firm, was concerned, it was a sale for the purpose of protecting his property from attachment by his creditors, and the bill of exceptions seems to import that he and Robert C. Huntress, after that sale, continued the business as partners under the firm of Huntress & Company until some time in the following February, the nominal title to the stock of goods being in Frank Huntress. A new arrangement was then made, though at what precise date is not stated, by which the defendants gave a note for the sum of $1895, payable to the plaintiff or his order, and dated back as of October 23, 1865, and the notes actually given on that day were cancelled, with the exception of one which the defendants had already paid to Jones. The case finds that, when this new and substituted note was given, the plaintiff ceased to have any interest in the business, and the defendants thenceforward carried on the business as partners. Whether any new arrangement was then made in regard to the goods, the transfer of which had formed the consideration of those notes, does not appear. The contract in writing between him and Frank Huntress, dated February 12,1866, may have been a part of the transaction, although the sums named in it do not correspond with the amount of the note. It purports to be a sale by the plaintiff of all his interest in the firm of Huntress & Company to Frank Huntress. The plaintiff claimed that his share of the profits in the business of Huntress & Company, from October to February, amounted to $320. As already suggested, the case does not show that the title to the goods had ever been formally in the hands of Huntress & Company.
The plaintiff’s claim in this action is for goods sold (including also tire good will of the former firm) to both defendants for $1600, on October 23, 1865, upon the dissolution of that firm; but in the second count it is stated more generally as a sale of goods, with good will, etc., to the same amount, but without date. And it appeared that a suit had been brought upon the above described note, in the name of George A. Hanaford but for the benefit of this plaintiff, against the defendants, and that they had defended against it successfully judgment having been rendered in their favor.
*126At the trial of this action, the defendants requested the judge to rule that the judgment in the former suit was conclusive, or at least sufficient, evidence that the bill of sale made in October 1865, and the notes made at that time, and particularly the note then in suit, were of no validity, as respects the interest of the plaintiff in the property described in that bill. The judge refused so to rule, and as we think was right in so doing. There was sufficient privity of interest between Hanaford and this plaintiff to make that judgment effective against the latter; but the defence was based upon two grounds, and the record docs not show upon which of the two it was maintained. The defendants in that case insisted that the note in question never represented a real transaction, and that all parties understood that it was not valid and not to be paid, but they also insisted that, even if it were valid in its inception, yet in a subsequent arrangement it was agreed for a valid consideration that it should thereafter be considered a nullity and be released and discharged, and that said note, by neglect or omission of the parties, was not taken up or lestroyed. The judgment does not settle the question which of the two was the issue upon which the defendants prevailed. The jury may have been satisfied that the original note was valid, but that it had been cancelled, or taken into consideration and disposed of in some more recent arrangement, to wit, in connection with the written agreement of February 12. McDowell v. Langdon, 3 Gray, 513. Dutton v. Woodman, 9 Cush. 255. Sawyer v. Woodbury, 7 Gray, 499. Burlen v. Shannon, 99 Mass. 200.
The second ruling requested by the defendants assumes as a fact that both parties had testified that the papers executed in October, and the note for $1895, were not intended by the par» ties, as to the plaintiff’s interest in the property, to be operative, rnd that no delivery or possession of his property was taken under the same ; but it does not appear by the bill of exceptions that both parties had so testified. It is true that the plaintiff assumes, and insisted at the trial, and in the argument upon the exceptions, that the transaction was not consummated and finished until February, but it may have been inchoate in October. The plaintiff had made a nominal sale in October, and the February *127transaction may have been a mere modification of that agreement, substituting Frank Huntress in his place as a partner in the firm of Huntress & Company, and relating back to the first date. But however that may be, the proposed instruction required the judge to assert as a fact a matter which appears by the report of the case to have been a controverted point, and it was therefore rightfully refused.
Tn refusing to give the third instruction prayed for, in the terms proposed by the defendants, we do not understand that the judge led the jury to suppose that proof of a sale to one only of the defendants would justify a verdict against both. On the contrary, we think that the substance of the instruction actually given was that the plaintiff must prove that he sold his interest in the property to the two defendants jointly. It was not necessary to prove that the sale was made in October. It might have been begun in October, modified afterwards, and not finally completed till a later date.
As to the fourth instruction, there can be no doubt that such evidence as that insisted upon by the defendants would have a tendency to maintain their view of the case. We do not understand the judge to have ruled otherwise. It is not the right of a party to require the court to single out some particular portion of the evidence for special comment and remark. And here also we find nothing in the bill of exceptions that shows that both parties testified to the truth of the assumed facts; or that the prayer for instructions is founded upon admitted facts. We see no cause for setting aside the verdict on either of the grounds urged by the defendants.
The charge of the judge to the jury in the Hanaford suit, upon the law applicable to that case, was not competent as evidence in this suit. If it were a legal presumption that the verdict was in accordance with the charge, still, without proof of what transpired at the trial and what evidence was introduced, the charge would not of itself show upon which ground of defence the verdict was rendered. It is not suggested, and we cannot presume in favor of the excepting party, that the charge limited the jury to tho sole question of the original invalidity of the transactions.
Exceptions overruled.