Bement v. Smith
New York Supreme Court
This was an action of assumpsit, tried at the Seneca circuit in November, 1834, before the Hon. Daniel Moseley, one of the circuit judges.
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This was an action of assumpsit, tried at the Seneca circuit in November, 1834, before the Hon. Daniel Moseley, one of the circuit judges. In March, 1834, the defendant employed the plaintiff, a carriage maker, to build a sulkey for him, to be worth ten dollars more than a sulkey made for a Mr. Putnam; for which he promised to pay $80, part in a note against one Joseph Bement, a brother of the plaintiff, for the sum of 10 or 11 dollars, and the residue in his own note, at 6 or 12 months, or in the notes of other persons as good as his own. In June, 1834, the plaintiff took the sulkey to the…
1Opinion of the Court
*495 By the Court,
Savage, Ch. J.
The defendant presents no defence upon the merits. His defence is entirely technical, and raises two questions: 1. Whether the tender of the sulkey was equivalent to a delivery, and sustained the averment in the declaration that the sulkey was delivered; and 2. Whether the rule of damages should be the value of the sulkey, or the particular damages to be proved, resulting from the breach of the contract. There is no question raised here upon the statute of frauds. The contract is therefore admitted to be a valid one; and relating to something not in solido at the…
2Cited by48 opinions
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- Acme Food Co. v. OlderWest Virginia Supreme Court · 1908
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