Berryman v. Larmer

The defendant’s contention that the plaintiffs are estopped by the judgment rendered in the proceedings brought by the town board of the town of Albany against' the defendant has no substantial support. It does not appear that the county court had jurisdiction, for the reason that at the time the suit was begun the county in which-the town of Albany was situated had adopted the county system of poor and the right to enforce such liability as might have “existed against George Larmer is, under that system, vested in the county superintendent of poor. Furthermore, that was a proceeding to establish the status of William Larmer as a poor person. The issues presented by the pleadings in this case were not within the issues presented in that case, neither is the result in this case dependent upon the status of William Larmer as a poor person. The issue presented here not having been presented by the issues or in fact tried by the former proceeding, that proceeding could not operate as an estoppel against the plaintiffs and prevent them from maintaining the present action.

Defendant further argues that the verdict of the jury is not supported by the evidence. We have examined the evidence and are of the opinion that there is ample support in the evidence for the verdict.

The defendant’s next contention is that the court erred in refusing to submit to the jury a question, as requested, as to whether or not the defendant had the right to terminate *575the contract. It was not claimed upon the trial that the contract was for any definite period and it was conceded that the defendant had the right to terminate it, and the defendant’s contention that he had terminated the contract in October, 1913, was found against him. There being no claim on the part of the plaintiffs that the defendant did not have the right-to terminate the contract and there being no claim on the part of the defendant that it was ever terminated at any time other than in October, 1913, the. court was fully justified in declining to submit the question requested by the defendant.

By the Court. — Judgment affirmed.