Olyphant v. Baker
New York Supreme Court
Motion to set aside the report of a referee. The action was assumpsit for the balance of the purchase price of a quantity of barley. Plea, non-assumpsit.
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Motion to set aside the report of a referee. The action was assumpsit for the balance of the purchase price of a quantity of barley. Plea, non-assumpsit. A contract in writing, signed by the defendant only, was given in evidence by the plaintiff, as follows: “I hereby agree to sell seven hundred bushels of barley, (or what I may have in store at Mr. P. Church, jr.’s warehouse,) to Abner Baker, [the defendant,] at the rate of forty-five cents per bushel; to be delivered when said Baker may call for it. I agree to hold the barley free of storage until the first day of January next. The barley…
1Opinion of the CourtWhittlesey, J.
The sole question here is whether there was a delivery of the barley to the defendant, who was the purchaser. In many cases of sales of personal property it is a very nice and difficult question to determine whether there has been a delivery—whether the title has passed. In this casé the contract was executory. The quantity of barley was uncertain, and as it was sold by the bushel, the whole price could not be known until the quantity was ascertained. The seller was entitled to immediate payment, at any rate he was entitled t: payment before he parted with the property. The purchaser was…
2Cases cited4 opinions
- Andrew v. DieterichNew York Supreme Court · 1835
- M'Donald v. HewettNew York Supreme Court · 1818
- Russell v. NicollNew York Supreme Court · 1829
- Hollingsworth v. NapierNew York Supreme Court · 1805
3Cited by32 opinions
- Terry v. . WheelerNew York Court of Appeals · 1862
- Lingham v. EgglestonMichigan Supreme Court · 1873
- Russell v. . CarringtonNew York Court of Appeals · 1870
- Burrows v. . WhitakerNew York Court of Appeals · 1877
- Kein v. . TupperNew York Court of Appeals · 1873
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