Mercein v. Andrus & Mack
New York Supreme Court
This was an action of assumpsit, tried at the Tompkins circuit in June, 1830, before the Hon. Nathan Williams, one of the circuit judges. The declaration contained three special counts, and also the common money counts.
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This was an action of assumpsit, tried at the Tompkins circuit in June, 1830, before the Hon. Nathan Williams, one of the circuit judges. The declaration contained three special counts, and also the common money counts. In the first count, the plaintiff states that in consideration of his abandoning a levy made under an execution in his favor, on the property of one Ephraim Reed, the defendant in the execution, the defendants in this cause promised that they would pay off and discharge the damages and costs due from Reed to the plaintiff, (which had been stated to be $265,83,) and that he did…
1Opinion of the Court
By the Court,
Savage, Ch. J.
It is apparent, from comparing the declaration with the testimony, that the promise proved does not sustain any one count in the declaration. This objection, however, was not taken upon the trial; it could not be taken, therefore, upon the argument, as it is possible it might have been obviated at the trial.
The promise proved was to endorse a note for $150. This is the only promise which it is alleged was made or assented to by Mack. There is not a particle of testimony to shew that Mack ever assented to, or knew of the endorsement of the $600 note.
The judge…
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