Draper v. Edward T. Randolph & Co.
Superior Court of Delaware
This case was instituted by writ of- foreign attachment against the defendants; who appeared and dissolved the attachment by filing special bail.
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This case was instituted by writ of- foreign attachment against the defendants; who appeared and dissolved the attachment by filing special bail. The plaintiff declared in case, with general and special counts, setting out a special agreement between the parties for the raising four to five hundred tons of iron ore, from the defendant’s beds at Gum Branch, in Sussex county, and delivery of the same at Millville, New Jersey, at #3 per ton, the plaintiff averring that he raised and delivered 13G| tons at Millville, and 109 tons at Milford, on the way to Millville, when he was prevented from…
1Opinion of the Court
Judge Harrington,
charged: 1. That if the plaintiff had proved his contract as laid, for the raising and delivery of such ore as he did raise from Gum Branch, whether good or bad, he was entitled to recover; because though it be an executory contract, not fully performed, the plaintiff was entitled to consider it at an end by the defendants’ refusal to comply with their part of it; and to recover on the general counts, apart from the contract for what he had done under it. (Cutter vs. Powell, 44 Law Lib. 14, note.)
2. That if the contract proved was, as contended by the defendant, viz., a…
2Cases cited2 opinions
- Sickels v. PattisonNew York Supreme Court · 1835
- Oliphant v. State Board of EducationSuperior Court of Delaware · 1924