Hutchins v. . Hebbard
New York Court of Appeals
The appeal was from a judgment of the Supreme- Court, affirming the judgment rendered by Mr. Justice Allen, at ■the Onondaga Circuit, dismissing the complaint with costs. The action was brought by the plaintiff to recover money collected by the defendant from the State, under an irrevocable power of attorney from the contractors, through whom the plaintiff claimed by assignment subsequent to the execution of the power.
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The appeal was from a judgment of the Supreme- Court, affirming the judgment rendered by Mr. Justice Allen, at ■the Onondaga Circuit, dismissing the complaint with costs. The action was brought by the plaintiff to recover money collected by the defendant from the State, under an irrevocable power of attorney from the contractors, through whom the plaintiff claimed by assignment subsequent to the execution of the power. On the 14th of July, 1854, Clark Hebbard, a brother of the defendant, and Michael B. Hutchins, the father of the plaintiff, formed a partnership in the business of canal…
1Opinion of the CourtPorter, J.
The power of attorney did ,not constitute the contract between Hebbard & Hutchins and their indorsers. It was delivered in part performance of the oral agreement, of which it was a mere incident. As that agreement was never reduced to writing, it was properly established by oral evidence. (Wentworth v. Buhler, 3 E. D. Smith, 305, 307; Batterman v. Pierce, 3 Hill, 172, 178; Potter v. Hopkins, 25 Wend., 417; Barry v. Ransom, 2 Kern., 462.) When the purpose for which a writing was executed is not inconsistent with its terms, it may properly be proved by parol. (Truscott v. King, 2 Seld., 147,…
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