Legal Opinion

Fuller v. Hubbard

New York Supreme Court

Decided August 15, 1826PublishedCited by 30 opinions

Assumpsit, commenced in August term, 1821; and tried at the Chenango circuit, August 26th, 1823, before Nelson, C. Judge. The declaration was on the special contract of Fuller and Smith, as proved upon the trial; and also contained the money counts.

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Assumpsit, commenced in August term, 1821; and tried at the Chenango circuit, August 26th, 1823, before Nelson, C. Judge. The declaration was on the special contract of Fuller and Smith, as proved upon the trial; and also contained the money counts. The following facts were in evidence at the circuit: On the 15th of May, 1812, Smith, the intestate, by a memorandum in writing, signed by both parties, agreed to sell Fuller 100 acres of land, in Lisle, Broome county, for 600 dollars, in consideration of 100 dollars then received in part payment. Fuller agreed to pay the residue in three yearly…

1Opinion of the Court

Curia, per

Woodworth, J.

The plaintiff was not entitled to recover under the general counts. The special contract is still subsisting; and the remedy of the plaintiff is on the contract. (Clark v. Smith, 14 John. 326.) That the plaintiff had no right to rescind, follows from the conclusion. (which we have come to on another point in the cause,) that the outstanding judgment admitted by the pleadings, was no obstacle in the way of performing the promise to convey according to its terms. The payments were made by the plaintiff upon the foot of the special contract. Every thing has gone on, for a…

2Cases cited2 opinions

  1. Nixon v. HyserottNew York Supreme Court · 1809
  2. Clark v. SmithNew York Supreme Court · 1817

3Cited by30 opinions

  1. Ziehen v. . SmithNew York Court of Appeals · 1896
  2. Dwight v. CutlerMichigan Supreme Court · 1855
  3. Bruce v. . TilsonNew York Court of Appeals · 1862
  4. Field v. MartinSupreme Court of Georgia · 1873
  5. Green v. GreenNew York Supreme Court · 1828

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