Equitable Co-Operative Foundry Co. v. Hersee
New York Court of Appeals
. Appeal from judgment of the General Term of the Supreme Court, in the fourth judicial department, entered upon an order made May 30, 1884, which affirmed a judgment in favor of plaintiff, entered upon the report of a referee. (Reported below, 33 Hun, 169.) This action was brought to recover damages for' the alleged conversion of a number of stoves.
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. Appeal from judgment of the General Term of the Supreme Court, in the fourth judicial department, entered upon an order made May 30, 1884, which affirmed a judgment in favor of plaintiff, entered upon the report of a referee. (Reported below, 33 Hun, 169.) This action was brought to recover damages for' the alleged conversion of a number of stoves. The stoves in suit were sold by defendant to the firm of Fisher & Co., the sale having been induced by fraudulent representations made by a member of the firm as to its responsibility. Plaintiff sought to rescind the contract of sale on the…
1Opinion of the CourtRapallo, J.
The point is elaborately and ably discussed in the opinion of Smith, P. J., at General Term, that the bringing of the action by the plaintiff against Fisher & Whiting for the contract price of the goods sold to them, was not an election to affirm the contract, which was final, and precluded the plaintiff subsequently bringing this action in disaffirmance of the contract, because the first action was abandoned and discontinued before trial or judgment, and no provisional remedy or other benefit was obtained by the plaintiff therein, nor was the position of the parties changed thereby.
We do…
2Cited by26 opinions
- Terry v. . MungerNew York Court of Appeals · 1890
- Johnson-Brinkman Commission Co. v. Missouri Pacific Railway Co.Supreme Court of Missouri · 1895
- Gushee v. City of New YorkAppellate Division of the Supreme Court of the State of New York · 1899
- Moline Plow Co. v. RodgersSupreme Court of Kansas · 1894
- Twenty-Second Corp. of Church of Jesus Christ of Latter-Day Saints v. Oregon Short Line RailroadUtah Supreme Court · 1909
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