Bruce v. . Burr
New York Court of Appeals
Appeal from order of the General Term of the Gourt of Common Pleas, for the city and county of Eew York, reversing a judgment in favor of plaintiff, entered upon the report of a referee, and granting a new trial. (Reported below, 5 Daly, 510.) This action was brought to recover damages for the alleged breach of a contract of sale on the part of the defendants.
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Appeal from order of the General Term of the Gourt of Common Pleas, for the city and county of Eew York, reversing a judgment in favor of plaintiff, entered upon the report of a referee, and granting a new trial. (Reported below, 5 Daly, 510.) This action was brought to recover damages for the alleged breach of a contract of sale on the part of the defendants. The complaint alleged, and the referee found, in substance, that defendants contracted to sell and deliver to the plaintiff certain books and publications to the amount of $2,975.50, and agreed to, and did, receive in payment therefor…
1Opinion of the Court
Church, Ch. J.
There is a legal difficulty, although somewhat technical, in sustaining the decision of the General Term in favor of the defendants on the ground of a right of rescission founded upon a mutual mistake within the principle decided in 16 New York, 595, and 43 id., 159. That defence was not set up in the answer. A right to rescind on the ground of fraud was set up, but not on the ground of mutual mistake. The evidence was competent upon the issue made, and the right to object to its use upon an issue not made by the pleadings was not, therefore, waived. (54 N. Y., 577.)
The General…
2Cases cited2 opinions
- Cardell v. . McNielNew York Court of Appeals · 1860
- Williams v. Mechanics' & Traders' Fire InsuranceNew York Court of Appeals · 1874
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