Howe v. Cook
New York Supreme Court
Error from the Cayuga common pleas." Cook & Maxwell let a horse to hire to go on a journey, to Howe, who so improperly drove the horse that he died; whereupon an action was brought against Howe. The first and second counts of the declaration were in assumpsit, and the third in trover.
Read the full summary
Error from the Cayuga common pleas." Cook & Maxwell let a horse to hire to go on a journey, to Howe, who so improperly drove the horse that he died; whereupon an action was brought against Howe. The first and second counts of the declaration were in assumpsit, and the third in trover. The two first counts contained the usual phraseology in declarations of this kind, that the defendant, contriving to injure the plaintiffs, &c. so carelessly, negligently and improperly drove and used the horse that he died and was wholly lost to the plaintiffs, but were clearly founded upon the promise of the…
1Opinion of the Court
By the Court,
Bronson, J.
Inactions against bailees, attorneys and others for negligence or misconduct in the discharge of their duty, the plaintiff may in general declare either in case or assumpsit. The gravamen may be alleged as consisting either in a breach of duty arising put of an en> ployment for hire, or a breach of promise implied from the consideration of hire : and other counts may be joined belonging to that form of action which the plaintiff elects to pursue. Govett v. Radnidge, 3 East, 62, 70. Church v. Mumford, 11 Johns. R. 479. Mr. Chitty gives precedents for declaring in both…
2Cases cited2 opinions
- Church v. MumfordNew York Supreme Court · 1814
- Hallock v. PowellNew York Supreme Court · 1804
3Cited by3 opinions
- Royce, Allen & Co. v. OakesSupreme Court of Rhode Island · 1898
- American Merchants' Union Express Co. v. PhillipsMichigan Supreme Court · 1874
- Ashley v. RootMassachusetts Supreme Judicial Court · 1862