Draper & Devlin v. Jones
New York Supreme Court
This was an action of replevin, brought in the superior court of the city of New-York, by the plaintiffs against the defendant, who was sheriff of the city and county of New-York, for the taking and detaining twenty barrels of Zante currants. The defendant pleaded non cepit; and the issue thus joined was brought to trial in the month of October, 1847, before Oakley, chief justice, and a jury.
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This was an action of replevin, brought in the superior court of the city of New-York, by the plaintiffs against the defendant, who was sheriff of the city and county of New-York, for the taking and detaining twenty barrels of Zante currants. The defendant pleaded non cepit; and the issue thus joined was brought to trial in the month of October, 1847, before Oakley, chief justice, and a jury. The plaintiffs proved by John B. Forbes, a produce-broker, that as such broker he sold, for them, a part of a cargo of Zante currants ; they were sold on the 5th of November, 1846, before their arrival,…
1Opinion of the Court
By the Court,
Edwards, J.
The memorandum of the contract of sale which was signed by the broker, as the agent of the parties, contains a provision that the notes to be given, shall be made satisfactory to the sellers. We think that the obvious construction of this contract, is, that the delivering of the merchandise and the giving of the notes were to be simultaneous acts, and each was to be the condition of the other.
But this contract differs from ordinary contracts, where the sale is for cash or notes, for a further act was necessary on the part of the vendors before the vendees would have it…
2Cases cited1 opinion
- Leven v. SmithCourt for the Trial of Impeachments and Correction of Errors · 1845
3Cited by4 opinions
- Lees v. RichardsonNew York Court of Common Pleas · 1858
- Fuller v. BeanSupreme Court of New Hampshire · 1857
- Smith v. MasonNew York Supreme Court · 1816
- Wilson v. GouldNew York Supreme Court · 1880