Outwater v. Dodge
New York Supreme Court
This was an action of assumpsit, tried at the Dutchess circuit, in December, 1828, before the Hon. James Emott, then one of the circuit judges.
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This was an action of assumpsit, tried at the Dutchess circuit, in December, 1828, before the Hon. James Emott, then one of the circuit judges. The declaration contained several counts: 1. A count in indebitalis assumpsit for 500 barrels of herring, sold and delivered; 2. For a like quantity of fish, bargained and sold; 3. A quantum valebant for the fish, as sold and delivered j 4. A quantum valebant for the fish, as bargained and sold; and 5. Setting forth a special contract, by which the defendants bargained for and bought, and the plaintiff sold all the herring that would pass inspection,…
1Opinion of the Court
*400By the Court,
Sutherland, J.
The special contract was proved substantially, as laid in the declaration. The contract, however, was not reduced to writing when it was made, nor was any part of the consideration money paid; it was therefore void, under the fifteenth section of the statute of frauds, 1 R. L. 79, unless the fish contracted to be sold, or a part thereof was actually delivered by the plaintiff) and accepted by the defendants, under the contract. Whether there was such a delivery and acceptance, is therefore the first and most material enquiry in this case. (Here the judge went into a…
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