Crawford v. Morrell
New York Supreme Court
IN error, from the court of common pleas of Orange county. The defendant in error, brought an action of assumpsit, against the plaintiffs in error, as executors of David Crawford, deceased, in the court below.
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IN error, from the court of common pleas of Orange county. The defendant in error, brought an action of assumpsit, against the plaintiffs in error, as executors of David Crawford, deceased, in the court below. The second count in the declaration was, as follows : “ And whereas also, afterwards, in the life-time of the said David, to wit, on the 9th of May, 1802, at W., &c. a certain discourse was had and moved between the said David Crawford and fohn Morrell, touching and concerning a certain J J . road, before that time laid out and regulated by the commissmners of highways of, isc. and a…
1Opinion of the Court
Per Curiam-
The 3d and 4th objections taken to the? legality of the recovery below, are equally well founded. The contract proved, varied from the contract laid, inasmuch as the contract proved was, that the testator was to' pay for all the land included in the road, and the contract as laid was, that he was to pay for one half. This variance was material and fatal. A contract must be proved as laid, and the plaintiff cannot give in evidence an entire contract, relating to two subjects, when he declares for one. (1 Ld. Raym. 735. 1 Term Rep. 240. 1 East, 1. 1 Campb. N. P. 361.) The contract as…
2Cited by28 opinions
- Mercein v. People ex rel. BarryNew York Supreme Court · 1840
- Robson v. HarwellSupreme Court of Georgia · 1849
- United States v. BainbridgeU.S. Circuit Court for the District of Massachusetts · 1816
- De Beerski v. . PaigeNew York Court of Appeals · 1867
- Baldwin v. . PalmerNew York Court of Appeals · 1851
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