Leland v. Douglass
New York Supreme Court
This was an action of assumpsit, tried at the Oneida circuit, in April, 1827, before the Hon. Nathan Williams, one of the circuit judges.
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This was an action of assumpsit, tried at the Oneida circuit, in April, 1827, before the Hon. Nathan Williams, one of the circuit judges. The first count in the declaration alleges, that the "defendants received of the plaintiff a yoke of oxen, to s°Id and disposed of for and on account of the plaintiff for a reasonable reward to the defendants; and that the defendants promised to sell and dispose of the same, to render a just an^ trae account of the sale, and pay over the price, &c.— breach, that though the defendants sold, &c. they have not rendered an account, nor paid the-monies, &c. The…
1Opinion of the Court
By the Court,
Sutherland, J.
I am inclined to think the plaintiff should "have been nonsuited on the ground of a variance between the contract proved, and that laid in the first count of the declaration. It is admitted that the recovery cannot be sustained under the 2d count, which is on an executed consideration. (1 Chitty’s Pl. 295 to 310.)
The first count states the contract on the part of the defendant to have been, to sell the oxen of the plaintiff for a reasonable reward, and to account for, and pay over to the plaintiff the proceeds. Under this contract, the defendant would have been…
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