Topping v. Root
New York Supreme Court
Assumpsit, for non-delivery of hops, tried at the Rensseiaer circuib November 17th, 1824, before Duek, C. Judge. ^ l*16 trial, it appeared that the defendant, by a note in writing, dated August 22d, 1823, contracted to deliver to ^Ie plaintiíf> at his brewery, between the 1st day of October and the 1st day of December, 1823, 80001bs. of hops ; the plaintiff having the liberty of extending the quantity to HXOOOlbs.; in such case reasonable notice to be given; and . , the…
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Assumpsit, for non-delivery of hops, tried at the Rensseiaer circuib November 17th, 1824, before Duek, C. Judge. ^ l*16 trial, it appeared that the defendant, by a note in writing, dated August 22d, 1823, contracted to deliver to ^Ie plaintiíf> at his brewery, between the 1st day of October and the 1st day of December, 1823, 80001bs. of hops ; the plaintiff having the liberty of extending the quantity to HXOOOlbs.; in such case reasonable notice to be given; and . , the defendant was to receive 13 cents for each pound of hops. it not be convenient for the plaintiff to pay all the money on…
1Opinion of the Court
Curia, per Savage, Ch. J.
The defendant’s counsel contends that the promises are dependent; one being to deliver ; the other to pay; and that in such cases, the party complaining of the non-delivery, is bound not only to aver a readiness to pay, but also to prove that averment.
In the case of Green v. Reynolds, (2 John. 207,) the action was covenant. The plaintiff covenanted to give a deed of land, and the defendant to pay $1000. The plaintiff sued for the money; but did not aver a tender of the deed. The court said, the covenants were clearly dependent ; and that the good sense of the…
2Cases cited4 opinions
- Porter v. RoseNew York Supreme Court · 1815
- Jones v. GardnerNew York Supreme Court · 1813
- Green v. ReynoldsNew York Supreme Court · 1807
- West v. EmmonsNew York Supreme Court · 1809
3Cited by7 opinions
- Hedstrom v. BakerAppellate Court of Illinois · 1883
- Osborne v. ElliottCalifornia Supreme Court · 1850
- Fitch & Lozee v. BeachNew York Supreme Court · 1836
- A. B. Farquhar Co. v. New River Mineral Co.New York Supreme Court · 1903
- Currie v. . WhiteNew York Court of Appeals · 1871
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