Carney v. Newberry
Illinois Supreme Court
This was an action of assumpsit by appellee, administratrix of the estate of Amasa S. Newberry, against appellant, administratrix of James Carney. The declaration contains two counts.
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This was an action of assumpsit by appellee, administratrix of the estate of Amasa S. Newberry, against appellant, administratrix of James Carney. The declaration contains two counts. The first sets forth the following agreement, to wit: “ This agreement, made this 16th day of July, 1853, between A. S. Newberry, of Oneida county, New York, and James Carney, of Chicago, witnesseth: That said Newberry agreed to deliver to said Carney, on some wharf in the city of Chicago, in the autumn of each year, for seven years next ensuing, commencing with the present year, five thousand five hundred…
1Opinion of the Court
Catón, C. J.
The first instruction given for the plaintiff, we think, was erroneous. It was this : “ That if Newberry tendered hops, under the contract, in the spring of 1856, in good faith, but such hops proved inferior and not of the quality required by the contract, such failure would not release, nor could it be taken advantage of by the defendant, unless it was willful or intentional on the part of the said Newberry; and the said plaintiff might make tender of hops, under the contract, the next fall and at subsequent times of delivery, and claim payment therefor.”
By the terms of the…
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