[After stating the facts as above.]—The ground upon which the appellant claims that the learned judge erred in his charge, is that the jury were substantially instructed that if they found from the evidence that the defendant had made any kind of a promise, conditional or otherwise, the plaintiff was entitled to recover. That such is the fair import of the language used seems to be apparent, and it is also equally true that such a proposition would be erroneous. If the promise was conditional, proof of the fulfillment of the condition must be given before a recovery can be had (Ingersoll v. ddhoades, Hill & Denio Supp. 371); and the only question to be considered is whether the exception taken is sufficient to raise the question.
I am of the opinion that it is.
The proposition of the charge, in view "of the evidence, was erroneous, and to that erroneous proposition an exception is taken. In an exception to a charge counsel are not bound to state the grounds of their exception. They are simply called upon to except to such propositions as they deem erroneous, and this raises the question of law in a proper form.
It is impossible, in this case, to determine whether the jury found that an absolute promise had been made, or simply a conditional one, as there was evidence in support of either in the case, and by the charge they were substantially told, even if they found tfiat the promise was conditional, that a recovery could be had. This would give them an entirely erroneous view of the law applicable to the case before them, to the injury of the defendant.
I think, therefore, that the judgment- must be reversed, and a new trial ordered, costs to abide event.
J. F. Daly and Van Hoesen, JJ., concurred.
Judgment reversed, and new trial ordered, with costs to abide event.