Lamb v. Lathrop
New York Supreme Court
'Demurrer. The plaintiff declared on a note made by the defendants, bearing date 8th March, 1831, whereby the defendants promised, one year after date, to pay to the plaintiff $50 in a horse, neat stock, or first rate pine lumber, to be delivered in Cortland village, at the market price, at the appraisal of two persons of the names of Bartlett and Rowley, with use; and alleged non-performance.
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'Demurrer. The plaintiff declared on a note made by the defendants, bearing date 8th March, 1831, whereby the defendants promised, one year after date, to pay to the plaintiff $50 in a horse, neat stock, or first rate pine lumber, to be delivered in Cortland village, at the market price, at the appraisal of two persons of the names of Bartlett and Rowley, with use; and alleged non-performance. The defendants pleaded, that when the note became due, to wit, on the 8th March, 1832, they tendered to the plaintiff the said sum of $50 and the interest thereof for one year, in a horse, appraised by…
1Opinion of the Court
By the Court,
Savage, Ch. J.
The principal question arises upon the plea of the defendants, the validity of which is denied by the plaintiff, and the first ground urged on his part is, *97that it is not averred that the defendant is still ready to deliver the horse. It is contended, on the authority of Chipman’s Essay on Contracts, p. 96, that such an averment is necessary; and that, in a case like this, the replication of a subsequent demand and refusal authorizes a recovery upon the original cause of action. The leamedauthor of this essay argues that as there is at this day no case where…
2Cases cited1 opinion
- Sheldon v. SkinnerNew York Supreme Court · 1830
3Cited by17 opinions
- Hayden v. . DemetsNew York Court of Appeals · 1873
- Mitchell v. RobertsUnited States Circuit Court · 1883
- Billings v. VanderbeckNew York Supreme Court · 1857
- Des Arts v. . LeggettNew York Court of Appeals · 1858
- McCarthy v. Bowling Green Storage & Van Co.Appellate Division of the Supreme Court of the State of New York · 1918
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