Ellis v. Wild
Massachusetts Supreme Judicial Court
This action was assumpsit for a quantity of New England rum sold and delivered by the plaintiff to the defendant. The general issue was pleaded, and upon a trial before Parker, J., at the last November term, a verdict was taken by consent for the plaintiff, subject to the opinion of the Court on the facts stated in the judge’s report.
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This action was assumpsit for a quantity of New England rum sold and delivered by the plaintiff to the defendant. The general issue was pleaded, and upon a trial before Parker, J., at the last November term, a verdict was taken by consent for the plaintiff, subject to the opinion of the Court on the facts stated in the judge’s report. From the report it appears that the defendant, having in his possession two promissory notes signed by one Silas * Clark, and purporting to be payable to, and endorsed [ * 322 ] by, one Samuel Withington, bargained with the plaintiff for a quantity of New…
1Opinion of the CourtParsons, C. J.
The real question in this case is, on which of the parties, both being equally innocent, the loss of the notes [ * 323 ] shall fall. And it is our opinion, if it was the * original intent of the defendant to sell, and of the plaintiff to buy, the notes, and to make payment in rum, the defendant has fulfilled his contract, and the plaintiff cannot maintain this action.
But if the plaintiff intended to sell the rum for money, and the defendant intended to buy rum, and the payment by the notes was not a part of the original stipulation, but an accommodation to the defendant, then he has not paid…
2Cited by22 opinions
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