Kein v. Tupper
The Superior Court of New York City
The action was to recover the contract price of seventy bales of cotton, wheighing thirty-five thousand nine hundred and thirty-eight pounds, alleged to have been sold and delivered by the plaintiffs to the defendants.
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The action was to recover the contract price of seventy bales of cotton, wheighing thirty-five thousand nine hundred and thirty-eight pounds, alleged to have been sold and delivered by the plaintiffs to the defendants. The answer denies the sale and delivery of the seventy bales, and as a separate defense alleges, that the planitifi's had contracted to sell to the defendants one hundred and nineteen bales of cotton, of certain marks, that it was sold by sample, and that such contract was the only contract between the parties. They then alleged non-performance of said last mentioned contract…
1Opinion of the Court
By the court, Monell, J.
The chief question in this case arises under the refusal of the court to charge the jury, that the contract of sale was entire, and could not be satisfied by a delivering or tender of delivering of a quantity less than the whole.
The evidence justifies the finding of an actual delivery of seventy bales; They were taken from the warehouse, sampled and weighed, and by the diriection of the defendants re-stored.for their account. That constituted a delivering of the seventy bales. Before a like delivering of the remainder could be made, the warehouse and its contents were…
2Cases cited7 opinions
- Harmony v. . BinghamNew York Court of Appeals · 1854
- Russell v. NicollNew York Supreme Court · 1829
- Baker v. . HigginsNew York Court of Appeals · 1860
- Crofoot v. . BennettNew York Court of Appeals · 1849
- Joyce v. . AdamsNew York Court of Appeals · 1853
2 more not listed; retrieve them via the Exa API.
3Cited by1 opinion
- Atlantic & Pacific Packing Co. v. WeinsteinAppellate Division of the Supreme Court of the State of New York · 1947