Draper v. . Snow
New York Court of Appeals
Appeal from the Superior Court of the city of ¡New York, The complaint was that on the 3d day of April, 1854, the plaintiff entered into a contract with one Hazewell, of which this is the counterpart: Hew York, April 3, 1854. 350 shares Penn.
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Appeal from the Superior Court of the city of ¡New York, The complaint was that on the 3d day of April, 1854, the plaintiff entered into a contract with one Hazewell, of which this is the counterpart: Hew York, April 3, 1854. 350 shares Penn. Zinc, 3f, B 60. I have purchased of Theodore S. Draper three hundred and fifty shares of the stock of the Pennsylvania and Lehigh Zinc Company, at three and three-eighths dollars per share, payable and deliverable—buyer’s option—in sixty days, with interest at the rate of six per cent per annum. GEORGE R. HAZEWELL. That before entering into the contract…
1Opinion of the CourtSelden, J.
Although the complaint in this case avers that the guaranty was executed at the same time with the principal contract, yet if it appear from the complaint itself that the averment is one which could not by possibility be supported upon a trial, the plaintiff cannot avail himself of it upon demurrer. The contract and guaranty are both set forth. If from these it appears, either expressly or by inference, that they were executed at the same time, or if the plaintiff could be permitted upon a trial to prove their simultaneous execution by parol, the averment is available to the plaintiff;…
2Cases cited1 opinion
- Douglass v. HowlandNew York Supreme Court · 1840
3Cited by25 opinions
- In Re the Estate of BrandrethNew York Court of Appeals · 1902
- United States v. FryeDistrict of Columbia Court of Appeals · 1970
- Ewing v. . WightmanNew York Court of Appeals · 1901
- Fram Corp. v. DavisSupreme Court of Rhode Island · 1979
- Kincaid v. . ArchibaldNew York Court of Appeals · 1878
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