Legal Opinion

De Forest v. Frary

New York Supreme Court

Decided August 15, 1826PublishedCited by 2 opinions

Os demurrer to the first and second counts of the dec-nation. The first count stated, that on the 1th day of December, 1822, in consideration that one Wm.

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Os demurrer to the first and second counts of the dec-nation. The first count stated, that on the 1th day of December, 1822, in consideration that one Wm. Woodworth was then indebted to T. Kellogg and L. R. Meller, in the sum of $200; and that Woodivorth, having carriages worth w ’ f o $1000, would and did, at the request and for the benefit of Kellogg & Meller, for the security and payment of his (IF’s) debt to them, deliver the carriages to the defendant, to be disposed of by him, and out of the avails to pay K. & M. their debt: and in consideration that W. then, as a part of the same…

1Opinion of the Court

Curia,per

Sutherland, J.

It is a fatal objection to both counts, that they aver the assignment of the order, which is the foundation of the plaintiffs’ action, to have been made by Kellogg alone, for himself and Meller, without averring that they were partners, or shewing, in any other way, the authority of Kellogg for that purpose. This draft was payable to the order of Kellogg or Meller, in the disjunctive, as stated in the first count; out of the proceeds of certain carriages, whenever they should be sold. It was, therefore, not negotiable ; and its legal effect is the same as though the…

2Cited by2 opinions

  1. Gibney v. . MarchayNew York Court of Appeals · 1866
  2. Charlton v. ReedSupreme Court of Iowa · 1883

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