Eaves v. Henderson
New York Supreme Court
Error from the Yates common pleas. Eaves and Henderson in a justice’s court, and declared on a joint and several promissory note, given by Henderson and one George B. Nichols to the plaintiff, for $28‘84, dated 30th March, 1833, payable six months after date. The defendant pleaded the general issue and gave notice of set-off. The cause was tried before the justice, who rendered judgment in favor of the plaintiff.
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Error from the Yates common pleas. Eaves and Henderson in a justice’s court, and declared on a joint and several promissory note, given by Henderson and one George B. Nichols to the plaintiff, for $28‘84, dated 30th March, 1833, payable six months after date. The defendant pleaded the general issue and gave notice of set-off. The cause was tried before the justice, who rendered judgment in favor of the plaintiff. The defendant appealed to the Yates common pleas, where the cause was again tried. After the making of the note was shown, the defendant proved, that at the time of its delivery by…
1Opinion of the Court
By the Court,
Cowen, J.
It is highly probable that the jury may, upon the evidence, have found that the goods, except the two first items, which bore date before the note, were delivered in payment. That, however, we do not know. They may have thought there was no agreement to let the accounts apply; and then they must have gone on the right of set-off. The court gave them the alternative, which should not have been done. It involves the absurdity of an account due to A being let in as a set-off in favor of B. That is objectionable enough of itself, independent of the question of variance,…
2Cited by10 opinions
- Phelps v. AbbottMichigan Supreme Court · 1897
- Davis v. . SpencerNew York Court of Appeals · 1862
- Gridley v. . DoleNew York Court of Appeals · 1851
- Williams v. CulverOregon Supreme Court · 1897
- Butts v. PerkinsNew York Supreme Court · 1864
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