Mosher v. Lawrence & Westcott
New York Supreme Court
Error to the Saratoga common pleas. Lawrence and Westcott sued Mosher before a justice, and declared upon an instrument in writing by which the defendant agreed to assign to the plaintiffs a certain lease, and to procure the discharge of a mortgage which was a lien upon the demised premises.
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Error to the Saratoga common pleas. Lawrence and Westcott sued Mosher before a justice, and declared upon an instrument in writing by which the defendant agreed to assign to the plaintiffs a certain lease, and to procure the discharge of a mortgage which was a lien upon the demised premises. The declaration was in writing, and set out a copy of the instrument, adding the signatures, but without any statement, or any thing connected with the signatures to indicate that it was under seal. The defendant pleaded the general issue. On the trial the instrument was produced in evidence under the…
1Opinion of the Court
By the Court, Jewett, J.
The plaintiffs declared upon a simple contract in writing, purporting to set it out in lieec verba. On the trial they offered to give in evidence a contract made by the parties under their hands and seals—a specialty. This evidence was objected to by the defendant on that ground. The justice overruled the objection and admitted the evidence.
Upon general principles, I think it is obvious that the justice erred. A specialty cannot be given in evidence as the foundation of an action of assumpsit, upon a simple contract. The variance changes the nature of the writing, so…
2Cases cited2 opinions
- Whitney v. SuttonNew York Supreme Court · 1833
- Mappa v. PeaseNew York Supreme Court · 1836
3Cited by6 opinions
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- Troy Fire Insurance v. CarpenterWisconsin Supreme Court · 1856
- Lashus v. ChamberlainUtah Supreme Court · 1890
- Bigelow v. DunnNew York Supreme Court · 1868
- Brace v. DobleSouth Dakota Supreme Court · 1892
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