#### William P. Thorp, Resp’t, *v.*Henry A. Riley, App’lt.

*(New York Superior Court, General Term,*

*Filed January 6, 1890.)*

1. Appeal—Questions not baisbd below.

In an action to recover the balance of a loan it was shown that defendant claimed to retain said balance absolutely as his own under an alleged agreement which the jury have found was not made, and defendant failed to request the submission to the jury of any question as to a demand. *Held,*that he could not on appeal insist that no demand was made.

*5212. Same—Evidence.

A note given by plaintiff to his mother for the money loaned to defendant was admitted in evidence. This was endorsed “This is the Riley loan,” but the attention of the court and jury was not called to the endorsement. *Held,*that defendant was not injured thereby.

3. Trial—Statements sent to juey.

After the jury retired the court stated that he would send them a statement that it was not intended to charge that mere delay in making a demand after arriving at maturity was of itself an acquiescence in the contract of an infant. He had already charged that if the contract was executed the defense of infancy could not avail. Defendant’s counsel asked a modification, which was refused and exception taken to the refusal. *Held,,*that such statement was immaterial in view of the charge already made, and did not prejudice the defendant.

4. Same—Hew trial.

The court stated in answer to defendant’s objection to a motion to send papers to the jury, that any papers he desired would be sent also. It did not appear that any papers were so sent, and no exception was taken. *Held,,*that this occurrence would not justify setting aside the verdict.

Appeal from judgment entered on the verdict of the jury.

*A. Wallcer*Otis, for app’lt; *Francis*Speir, Jr., for resp’t.

Ingraham, J.

This action was brought to recover the sum of $1,000, being the balance of a sum of $2,500 which the defendant had received from the plaintiff to be invested in Dakota and Nebraska tax certificates and small loans on personal property, and defendant rests his right to retain the $1,000 upon an alleged verbal agreement between himself and plaintiff, by which the defendant was to be paid the sum of $1,000 for accompanying the plaintiff to Dakota and obtaining for him an interest in the-banking business there.

The existence of this agreement to pay the defendant $1,000 for the services mentioned was denied by the plaintiff, and that was the question that was litigated upon the trial and was submitted to the jury to determine.

The court, at the end of the charge to the jury, stated: “If the contract was that the defendant was to receive $1,000 on the' plaintiffs entering into a satisfactory agreement with a banker in the west, and that he did enter into a satisfactory agreement, and if he went on under the agreement, and made money under the-agreement, that all that transaction became an affair of the past, being an agreement executed on both sides, then I charge you that the infant is not justified in a case of that kind in taking advantage of his infancy. Therefore, the great issue in this caséis, was the contract made. Did the plaintiff receive from the defendant such help as the defendant alleges that he gave to obtain a position in the bank in Dakota. Did the plaintiff go on with that and succeed to a reasonable extent. If so I charge you that the contract that was made was executed, the plaintiff received the advantage of it, and he is liable to pay whatever the contract calls for.”

If, therefore, the jury had found the contract was made as1 claimed by the defendant, or, in other words, had believed defendant’s testimony under this direction, the defendant was entitled to *522a verdict, and thus the only question submitted to the jury was the truth or falsity of the defendant’s testimony as to the agreement between himself and the plaintiff; and the jury in finding a verdict for the plaintiff must be assumed to have found 'that no such agreement was made.

There was, I think, a sufficient demand for the re-payment of the $1,000. The plaintiff testified that before the defendant left Dakota to come home in 1885, be (defendant) insisted upon his right to retain this $1,000 for the services rendered, to which the plaintiff objected, and in the subsequent transactions between the parties it does not appear that at any time defendant made any other claim except that he was entitled to retain absolutely as his own this $1,000.

Whether or not the defendant was bound to repay the $1,000 to plaintiff depended upon the existence of the alleged agreement, and the defendant having claimed his right to retain the $1,000 under that agreement, and having failed to request the court to submit to the jury any question as to- the demand, he cannot now insist that no demand was made.

The appellant also objected to the introduction of the note given by the plaintiff to his mother for the money which was advanced to the defendant, and especially to the endorsement upon the note of the words, “This is the Riley loan.” It does not appear from the case, however, that this endorsement was ever read to the jury or was in evidence; the note itself, and not the endorsement, was offered in evidence. The attention of the court was not called to the endorsement, and no specific objection to it was taken. The fact that the $2,500 was paid by the plaintiff to the defendant was conceded, and the receipt given shows that it was in the nature of a loan to Riley. The note, therefore, and its endorsement, was simply evidence of the conceded facts in the case, and could not have injured the defendant in the slightest. It had no relation to the subsequent agreement between plaintiff and defendant, and while it would appear that the evidence was immaterial, it had absolutely no bearing upon the only issue in the case that was in dispute and could not in the slightest degree have injured the defendant.

Kor did the fact that at the time the action was brought a portion of the sum received by the defendant was still invested under the original agreement between the parties, require the court to dismiss the complaint. In that case if the plaintiff’s story was true, he would be entitled to recover under any circumstances the amount of the $1,000 over and above the $426 that still remained so invested, and the defendant did not request the court to charge the jury that as to that amount the plaintiff could not recover.

There was no exception taken by the defendant to the charge as made, and it must be assumed, therefore, that the question was submitted to the jury in a manner satisfactory to the defendant.

But one other question remains in the case,and that is as to the occurrence that happened after the jury had left the court room to deliberate upon its verdict. At that time the court announced to the counsel for both parties its intention to send to the jury the *523following statement: “ I do not wish to charge you that mere delay on the part of the plaintiff in making a demand after arriving at maturity, is, of itself, an acquiesence in the contract made "by him while an infant.”

In view of the charge as actually delivered by the court, this was entirely immaterial, for, as before stated, the court had in substance charged that if the contract had been made and executed, the defense of infancy would not avail.

At that time counsel for the defendant asked that this proposition be modified by an addition thereto, which the court refused. Counsel for the defendant then stated *“*I object to requests being submitted to the jury at this time, and I except to your honor’s refusal to charge my last proposition.”

The objection that the jury were not present at the time, or that the communication was not made to them orally instead of in writing, was not made.

Ror did the counsel except to the statement made by the court to the jury or to the determination of the court that further instructions should be sent to them. The only exception was to the refusal of the court to charge the additional request made by the defendant, which, in view of the charge as given, was, as before stated, entirely immaterial.

The case then states that plaintiff asked that certain papers be submitted to the jury, to which defendant’s counsel objected upon theo ground that the papers should have been submitted when the jury retired, to which the court replied, “Any papers that the defendant desires I will send up also.” It does not appear, however, that any papers were sent to the jury, nor was any exception taken by defendant’s counsel to any action taken by the court.

I do not think that this occurrence would justify the court in setting aside the verdict and granting a new trial. Ro communication was made to the jury in the absence of counsel for the respective parties, and there was no exception taken to the action of the court at the time.

The authorities cited by the' defendant, which show that where communications are made to the jury in the absence of counsel and without their knowledge the verdict will be set aside, do not apply, for in this instance counsel were apprised of the proposed action of the court, and no exception was taken.

An examination of the whole record has satisfied us that the -case was fairly tried, that the defendant has no legal ground of complaint, and that the judgment and order appealed from should be affirmed, with costs.

Sedgwick, Gh. J., and Freedman, J., concur.