Wood v. Hitchcock
New York Supreme Court
This was an application to the court to set aside a report of referees. The action was assumpsit, and the declaration contained counts for goods sold, work done, materials found, and in the common money counts. The defendant pleaded non-assumpsit as to the promises, &c. except as to the sum of $>85, and as to that sum a tender ; there was also a plea of set-off.
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This was an application to the court to set aside a report of referees. The action was assumpsit, and the declaration contained counts for goods sold, work done, materials found, and in the common money counts. The defendant pleaded non-assumpsit as to the promises, &c. except as to the sum of $>85, and as to that sum a tender ; there was also a plea of set-off. On the hearing before the referees, the plaintiff offered to prove a demand for board, lodging and washing furnished for two sons of the plaintiff at his request. The evidence was objected to as inadmissible under the counts of the…
1Opinion of the Court
By the Court', Co wen, J.
Very likely the defendant, when ' he made the tender, owed the plaintiff in the whole more than eighty-five dollars, but has succeeded, by raising technical difficulties, in reducing the report to that sum. Independent of that however, the tender was defective. It was clearly a tender to be accepted as the whole balance due, which is holden bad by all the books. 2 Phil. Ev. 7th ed. 133, 4. Evans v. Judkins, 4 Campb. 156. Cheminant v. Thornton, 2 Carr. & Payne, 50, and Peacock v. Dickerson, in a note, id. 51. Strong v. Harvey, 3 Bing. 304. Mitchell v. King, 6 Carr. &…
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