Bank of Beloit v. Beale
The Superior Court of New York City
Appeal by the plaintiff from a judgment, and from an order, denying a motion made by the plaintiff for a new trial. This action was brought in November, 1858, on the allegations, that the plaintiff, in the early part of 1858, consigned to the defendants a specific quantity of wool, to be sold for and on account of the plaintiff for cash; that the defendants received and sold the wool; but paid only $2,000 of the proceeds to the plaintiff, and refuse to pay the balance; the…
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Appeal by the plaintiff from a judgment, and from an order, denying a motion made by the plaintiff for a new trial. This action was brought in November, 1858, on the allegations, that the plaintiff, in the early part of 1858, consigned to the defendants a specific quantity of wool, to be sold for and on account of the plaintiff for cash; that the defendants received and sold the wool; but paid only $2,000 of the proceeds to the plaintiff, and refuse to pay the balance; the complaint prays judgment for the residue of the proceeds, which; including interest, the jury found to be $5,553.5*7. The…
1Opinion of the CourtRobertson, J.
—The reply in this case is confined to simply putting in issue the facts set up in the answer, and did not claim any estoppel of any kind. It was formerly the rule, that the benefit of an estoppel must be claimed in pleading; otherwise, the whole matter was open to re-*626inquiry. (Kilheffer v. Herr, 17 Serg. & Rawle, 319, 322.) It is possible no reply was necessary in this case; and, therefore, the plaintiffs may not be precluded by having put one in without claiming the estoppel; but it • is not a question free from doubt.
It is evident that the admission and exclusion of the evidence, objected…
2Cases cited7 opinions
- Marsh v. PierSupreme Court of Pennsylvania · 1833
- Betts v. StarrSupreme Court of Connecticut · 1825
- Hull v. BlakeMassachusetts Supreme Judicial Court · 1816
- Nicholl v. MasonNew York Supreme Court · 1839
- Kilheffer v. HerrSupreme Court of Pennsylvania · 1828
2 more not listed; retrieve them via the Exa API.
3Cited by1 opinion
- Wright v. RittermanThe Superior Court of New York City · 1866