, 1874-02-14
THE PENNSYL vANiA COMPANY.
Their Suit Against Sherman s.
AllertOn.

| k4uGTLOus
4 New Trial Granted By Judges Drnm-
mond and Dlodgett.
The motion for new trial WAS granted yester-
day in the case Of the Pennsy1vania Railroad
! Company against john B. Sherman, Archibald
II. Alerton, and Samuel ". Al1erton, The case
| has been closely contested, and, as the amount
involved is $500 ,000 resume will perhaps be
! interesting.
| In 1864 the Pennsylvania Railroad Company,
desirous Of Increasing its business in the ship
ment Of stock over it's railway, leased the stock
yards at East Libcrty, near Pittsburgh, to
Samuel ". A1lerton and Joseph Mcpherson,
since deceased. It was, however, stipulated
TINT 4. III. Allerton and John 3. Sherman were
| to form = copart0ership with the two former
parties in this affair. In fact. A. II. Allerton
| and Sherman were the two more important
parties, both being very heavy shippers and
| able to influence business. In August
| 1864, Samuel Allerton came to Chicago and gave
such discou1aging picture Of affairs that Sher-
| man willingly agreed to q dissolution. Shortly
| atterward, however, he ascertalned some facts
| which put new faco on mattera. It appeared
| that the business at East Liberty. instead Of
| therefore, desirous OF obtaininS oharc Of the
profits, commenced suit against AIierton to have
the dissolution OF partnership declared void be-
cause it WAS procured by fraud, and for an
count.
This suit Was dismissed, hoHoy Ell, after time,
and another brought, in which Sherman, after
long contest, obtained decree in 1872 against
Sem Abortion for an account. An account vas Of
feted but it was believed to be incorrect, and the
suit Is still pending. Enough was learned to show
that the probable profits would have been $780,
900 year hnd the partnership been continued,
Tie lease was originally for ten years, hut in
February, 1870, the Company terminated it on
tho ground Of non-performance Of the cove
nanta.
In April, 1873, the Pennsylyania Railroad
Company commenced m action in covenant here
against the two Allertons and Sherman laying
damages at 100000. The declaration set out
the making Of the lease, its terms and duration,
and charged that the defendants, especially A.
Il. Allerton and John B. Sherman, Samuel Alle1-
ton and McPherson being only joined as matter
Of form. had broken their covenants and had
used their influence covertly in behalf Of other
roads, and had induced shippers to send their
stock by the New York Central Railroad instead
Of the plaiu1in's.
The defendants fled pleas alleging that they
bad in all respects complied with the terms OF
the agreement. On the day OF the trial, how
ever, Sherman and i. u. Allertou put in plea OF
non est factum,-i. e., that they had not sigaed
the lease sued upon.
MI. stcrrB, who has managed the case for tho
platntn, oHesea Ter M testimony to prove the lease IN
e'aeuss ~ - '4t5 a,i! 1uo ne.sta'o; m. WY "ele
J. kales, and D. Goodwin, Jr., objected, on tho
ssou.u tn.at !1&'ioi esiaeuco "ea !4u19sapta ~
sa,s m1it1eu mslt uneps. oo tna' Il sne nu4t
W. mn9 VI 144 ~ len ;' ~ Anu a. ai ~
1nent t tha n' I ths ~ ,,rtn i " eaas o{ 1n
.o:1lss4p4o" :u ~. ''ofls 5epaeo taa8 1oe
ti'at T'ate.seu ~, Gnsaea .uusu - @ ano"
anas 1ust 9le'1ous ~ Ioe easca.'on " :4s lease
* !t ~ DEL aus - eei.a, u9tel.
t tnht tnete "as parlnotsnP oe.Meen +. .ae oe
tIern hai s;mned - sor at Idce '1 R,od"att
ai.aa 1ne lAi ~ s!6ueo H. d ~ 49, .noso noos1
mathea ,9at ine a1lhence h golng 70 pfo1e rne
r.. tE1 1852 t,tS.t eu1e t ~ ~ o. rm M
Judge thereupou, in IN extended opinion, after
~ lea1nen@ VI IVY oa}st 1etuseo u auinlt Lao
lease, hoiainE that the question WAS whethert the
deed so ; Is to bind the Defendants not Joining
therein. The general principle, he said, was
pus nsr aasrofaes were
coulo oe oono. ne ala not thlnk, howoVsr. thar
rhe present came WITHIN those rules he decided |
moreover, that the evidence introduced showed |
that no firm had been formed they we're only |
tn king the initial steps. The question was AZ to
the c6nnetancT nf }ba tcst;mdnT ~ apa - +he
aafond,rta 1i,L1a ,ot ~ a. ..a;ght a.,d a. H.
n .n nos ~ ;uo auu 10 10
be excluded.
Mr. Storfs then, under leave Of Court, filed an
additional count. and The next DIV formally Of !
fered to give evidence in support OF the issues,
which was refused. Leare was thereupon asked
to withdraw juror, and have the case continued !
on the ground that the decision OF the Court |
had surprised lin. This was refused, and tho |
Judge instructed the jury to hnd for tho de-
Mr. Storrs made motion subsequently for q
new trial. The argument before Judees Drum
mnnd and R1odcatt tonl, tha oreotnr nnrt of
threa dava and ;Ens ah1v oonteafad Thap pai1nn1s
',,,est;on w,a nhathar tho ae;danca afrarad ~
4uest4on "as WuetueI tl9 e'1oence onereu TO
sho" partnership should have been allowed to
60 to the jury instead OF being decided By the
Court.
At the conclusion of the argument. Jndce
Drnmmond remarknd.
~]e.-.N -..N1N.s'. - - .,
cnrd e ton ne {oe 70
case aad what the t1cts arethst is what the facts
Eend 70 pzove-"hether there are any facts
~h1Gn tend 10 Prove ms pafncular 1asae. ihas
= = ai mere - aooas It. the1e we're any facts
may tenaea 70 Ptoso u. WY tnen, OF coafse there
ought to granted, think II tudOubtA