Thomas v. Dickinson
New York Supreme Court
This was a motion on the part of the defendant for a new trial on a case. The action was commenced in March, 1848, and the declaration was in assumpsit, on the common counts, for real estate, contracts for the sale of real estate, buildings, improvements upon land, and rights, interests, claims and possessions of the plaintiff, of, in and to certain real estate conveyed, assigned and delivered to the defendant; also for money alledged to be due upon an account stated.
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This was a motion on the part of the defendant for a new trial on a case. The action was commenced in March, 1848, and the declaration was in assumpsit, on the common counts, for real estate, contracts for the sale of real estate, buildings, improvements upon land, and rights, interests, claims and possessions of the plaintiff, of, in and to certain real estate conveyed, assigned and delivered to the defendant; also for money alledged to be due upon an account stated. The plea was the general issue. The cause was tried at the Steuben circuit in May, 1851, when the following facts were proved:…
1Opinion of the Court
By the Court, T. R. Strong, J.
The contract between the parties was void, by the statute of frauds. The full performance of it by the plaintiff, and a partial performance by the defendant, did not take it out of the statute, as to what remained to be done. (Duncan v. Blair, 5 Denio, 196.) It follows that the plaintiff could not maintain an action on the contract, at law, for the non-performance of it by the defendant, so far as it was *94unexecuted, assuming that the defendant was in default. The contract being void, it could not be the foundation of an action. If the plaintiff had any remedy at…
2Cases cited4 opinions
- Abbott v. DraperNew York Supreme Court · 1847
- Lovett v. CornwellNew York Supreme Court · 1831
- Duncan v. BlairNew York Supreme Court · 1848
- M'Nish v. CoonNew York Supreme Court · 1834
3Cited by8 opinions
- Fall v. HazelriggIndiana Supreme Court · 1874
- Harris v. RobertsNebraska Supreme Court · 1882
- L. Bucki & Son v. McKinnonSupreme Court of Florida · 1896
- Emery v. SmithSupreme Court of New Hampshire · 1865
- Mason v. BreslinThe Superior Court of New York City · 1870
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