Gutchess v. Whiting
New York Supreme Court
JOHN OVERROCKER was the owner of a load of barley, raised by himself, which was not new barley. He sent the defendant to Port Byron to sell the grain, telling him he must not sell it for seed barley. The defendant took the barley to Port Byron, and sold it to the plaintiff for seed barley. It was worthless for that purpose. The plaintiff sued Overrocker, who defended, pleading “a general denial only to the alleged cause of action.”
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JOHN OVERROCKER was the owner of a load of barley, raised by himself, which was not new barley. He sent the defendant to Port Byron to sell the grain, telling him he must not sell it for seed barley. The defendant took the barley to Port Byron, and sold it to the plaintiff for seed barley. It was worthless for that purpose. The plaintiff sued Overrocker, who defended, pleading “a general denial only to the alleged cause of action.” The cause was tried, and the plaintiff was defeated, the jury rendering a verdict in favor of Overrocker. The plaintiff then paid that judgment, and brought this…
1Opinion of the Court
By the Court, Johnson, J.
The- plaintiff was nonsuited at the circuit upon the opening of his case hy his counsel. The opening, as the case shows, corresponded with the complaint ; the plaintiff’s counsel stating substantially the facts as therein alleged. The question presented, therefore, is whether a good and subsisting cause of action is therein stated against the defendant. This question would have been more properly presented by a demurrer to the complaint, on the ground that upon the facts stated in the complaint no action could be maintained against the defendant.
The defendant had the…
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- McDermott v. ConleyNew York Supreme Court · 1890
- Taylor v. GuestNew York Supreme Court · 1873