Legal Opinion

Gardner v. . Clark

New York Court of Appeals

Decided June 5, 1860PublishedCited by 31 opinions

Appeal from the Supreme Court. Action by the assignee of one Adison Gardner for damages from the non-performance of a contract to sell and deliver a thousand bushels of barley, at forty-four cents per bushel. The barley was to be delivered at the storehouse of one Dunham, who was Gardner’s agent for the purpose of receiving and paying for the same, and was to be paid for as fast as it should be delivered.

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Appeal from the Supreme Court. Action by the assignee of one Adison Gardner for damages from the non-performance of a contract to sell and deliver a thousand bushels of barley, at forty-four cents per bushel. The barley was to be delivered at the storehouse of one Dunham, who was Gardner’s agent for the purpose of receiving and paying for the same, and was to be paid for as fast as it should be delivered. The defendant’s answer set up, among other things, the delivery of a portion of the barley, and that the defendant had always been willing and ready to deliver the residue, according to the…

1Opinion of the CourtSeldest, J.

It is quite certain that the judge at the circuit erred in supposing that, by including a defence upon the merits in the same answer with the defence of a former suit pending for the same cause of action, the defendant had waived the latter defence. A doubt at one time existed, whether the Code had abrogated the rule of the common law which required matters in abatement to be first pleaded and disposed of before pleading in bar to the actionand there were, in the Supreme Court, conflicting decisions upon the subject. The question, however, came before this court in the case of Sweet v. Tuttle…

2Cited by31 opinions

  1. Roberts v. LewisSupreme Court of the United States · 1892
  2. Bell v. BrownCalifornia Supreme Court · 1863
  3. Bradley v. KingIllinois Supreme Court · 1867
  4. Louisville Home Telephone Co. v. Beeler's Admx.Court of Appeals of Kentucky · 1907
  5. Stokes v. BaarsSupreme Court of Florida · 1882

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