Bush v. Tilley
New York Supreme Court
THE complaint in this case alleged that on the 22d day of December, 1858, the defendants were copartners together, doing business at West Troy, in the state of New York.
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THE complaint in this case alleged that on the 22d day of December, 1858, the defendants were copartners together, doing business at West Troy, in the state of New York. That on that day the defendants, under the name of John Tilley & Son, for value received, agreed to pay the plaintiff the sum of $300, payable in barrel or half barrel heads (to be good merchantable heads ;) the barrel heads to be six cents each barrel, and the half barrel heads five cents each half barrel, (the words “ barrel" and “ half barrel ” having been omitted from the memorandum of the* agreement by mistake.) The said…
1Opinion of the Court
By the Court, Johnson, J.
The plaintiff was very properly nonsuited upon the trial. His contract, which was in writing, when he came to introduce it in evidence, was wholly different from the one set forth in the complaint, and only entitled him to one half the quantity of barrel heads *604which he claimed, and which one half, he admitted in the complaint had been delivered by the defendants, and received by him. It was clear, therefore, upon his own showing, that he had no cause of action. The contract had not been broken, as he had alleged in his complaint, but had been performed by the…
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