Hand v. Belcher Mosaic Glass Co.
City of New York Municipal Court
Action by Elwood S. Hand against the Belcher Mosaic Glass Company for money alleged to be due on a contract by which defendant agreed, in consideration of the insertion of an advertisement in a book about to be published by plaintiff, to pay “$220 in trade, on publication of book and delivery to” defendant of specimen copy.
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Action by Elwood S. Hand against the Belcher Mosaic Glass Company for money alleged to be due on a contract by which defendant agreed, in consideration of the insertion of an advertisement in a book about to be published by plaintiff, to pay “$220 in trade, on publication of book and delivery to” defendant of specimen copy. The complaint alleged that $220 in goods was due under the contract, and that defendant had refused to deliver said goods, though plaintiff had demanded them. Defendant did not deny the averment of refusal as required by the contract, but he denied that anything was due as…
1Opinion of the CourtMcAdam, C. J.
The stipulation for the payment of $220 in trade means that the defendant was to give the plaintiff goods to the amount stated, at market prices, and, upon refusal to deliver the goods, the defendant became liable to pay as damages $220. 2 Wait, Act. & Def. 455; and see Pinney v. Gleason, 5 Wend. 393; Rockwell v. Rockwell, 4 Hill, 164; Fletcher v. Derrickson, 3 Bosw. 181. The action being founded on the breach, the averment of refusal to deliver was a material allegation, which the defendant was bound to deny, or, in default, be regarded as having admitted the fact to be as charged. Code, §…
2Cases cited3 opinions
- Fleischmann v. . SternNew York Court of Appeals · 1882
- Pinney v. GleasonCourt for the Trial of Impeachments and Correction of Errors · 1830
- Tell v. . BeyerNew York Court of Appeals · 1868
3Cited by1 opinion
- Driscoll v. Brooklyn Union Elevated RailroadAppellate Division of the Supreme Court of the State of New York · 1904