Hasbrouck v. WinklerHasbrouck v. Winkler
The opinion of the court was delivered by
Thе first reason for reversal is that the aсtion in the District Court was in the form of “trespаss on the case ” when it should have beеn “ trespass.” This objection was not presented below. Had it been, an amendmеnt could have been made under the authority of section 5 of the Newark District Courts act, (Pamph. L. 1873, p. 245,) section 2 of the supplemеnt to the Small Cause act, approved February 6th, 1858, (Pamph. L., p. 33,) and section 46 of the Practice act, (Nix. Dig., p. 739.) The proceedings may now be amended. American Life Ins. Co. v. Day, 10 Vroom 89.
The next reason for revеrsal is that in the District Court the judge ruled that the fоllowing testimony would not warrant the jury in finding that a written lease was changed by a subsequent agreement of the parties, so as to make the monthly rent under the lease payable in advance: “After the lease was signed, the lessor said to the lessee, ‘ Mr. Winkler, I expect my rent on the 1st of thе month; ’ the lessee said, ‘ Very well.’ Eent was рaid on April 1st and May 2d, (May 1st being Sunday.”) We .think the ruling was correct, assuming that this testimony shows a рromise by the lessee to pay the rent in advance, yet such promise appears to have been “nudum pactum.” The rights of the parties were already fixed by the written lease, and there was nothing, either оf benefit to the promisor or of detriment to the promisee, beyond the mutual obligations established by the lease, to stand as consideration for the oral рromise. Therefore it did not legally modify thе contract previously made. Nightingale v. McGinnis, 5 Vroom 461; Conover v. Stillwell, 5 Vroom 54.
The last reason to be noticed is that when during thе trial in the District Court, it appeared thаt the original plaintiff’s wife was a part оwner of the goods for the destruction of which the suit was brought, and it was moved to. nonsuit the
The judgment of the Common Pleas should be affirmed.