Moakley v. Riggs
New York Supreme Court
THIS was an action of assumpsit. The first count in the declaration stated, that whereas, on the 18th of April, 1817, at E., &c. in consideration that the plaintiff, at the special instance and request of the defendant, would sell and deliver to Elias Hull, certain goods, &c., as the said Elias should require. &c. and receive, as a collateral security, for the payment of the said goods, &c., a certain promissory note for 470 dollars, made by the said E. Hull, payable to…
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THIS was an action of assumpsit. The first count in the declaration stated, that whereas, on the 18th of April, 1817, at E., &c. in consideration that the plaintiff, at the special instance and request of the defendant, would sell and deliver to Elias Hull, certain goods, &c., as the said Elias should require. &c. and receive, as a collateral security, for the payment of the said goods, &c., a certain promissory note for 470 dollars, made by the said E. Hull, payable to William Duncan and John I. Rosseter, or order, one hundred and eighty days after date of the said note, in the bank of…
1Opinion of the Court
Spencer, Ch. J.
delivered the opinion of the Court. The .first inquiry is, whether the defendant’s liability under his engagement, that the note was good and collectable, after due course of law, did not depend on a condition precedent, to be performed by the plaintiff, the use of due diligence in attempting to collect the note by legal prosecution. It does not admit of a doubt, that the defendant, who is a mere guarantee, can only be made responsible by the plaintiff’s showing a pérformance, on his part, of the condition, on the observance of which the defendant consented to be answerable for…
2Cited by39 opinions
- Dyer v. GibsonWisconsin Supreme Court · 1863
- Allen v. RundleSupreme Court of Connecticut · 1882
- Hart v. HudsonThe Superior Court of New York City · 1857
- Bosman v. AkeleyMichigan Supreme Court · 1878
- Brackett v. RichSupreme Court of Minnesota · 1877
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