Capaccio v. Merrill
Massachusetts Supreme Judicial Court
Contract for breach of an alleged contract to sell and deliver to the plaintiff at a stipulated price all the fall and winter apples in the orchard on a certain farm of the defendants at Hampden in the year 1911, the amended second count of the declaration alleging that the plaintiff was the assignee of a contract in writing for the sale and delivery of such apples, and the amended third count of the declaration alleging a similar assignment and contract.
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Contract for breach of an alleged contract to sell and deliver to the plaintiff at a stipulated price all the fall and winter apples in the orchard on a certain farm of the defendants at Hampden in the year 1911, the amended second count of the declaration alleging that the plaintiff was the assignee of a contract in writing for the sale and delivery of such apples, and the amended third count of the declaration alleging a similar assignment and contract. Writ dated December 20, 1913. The proceedings are described in the opinion. The plea in bar there described was overruled by Wait, J. The…
1Opinion of the CourtLoring, J.
In this action the defendant Burleigh set up in bar the fact that judgment had been rendered in his favor in a former case between the same parties, based upon the same cause of action. From an inspection of the record in the former case it appears that the earlier judgment in favor of the defendant was rendered on a demurrer based upon the ground that the earlier declaration was defective and that that defect is cured in the declaration in the present action.
In such a case the former action is not a bar. It was so held in Wilbur v. Gilmore, 21 Pick. 250. To the same effect see Foote v.…
2Cases cited25 opinions
- Old Dominion Copper Mining & Smelting Co. v. BigelowMassachusetts Supreme Judicial Court · 1909
- Wiggins Ferry Co. v. Ohio & Mississippi Railway Co.Supreme Court of the United States · 1892
- Foye v. PatchMassachusetts Supreme Judicial Court · 1882
- Northern Pacific Railway Co. v. SlaghtSupreme Court of the United States · 1907
- O'Hara v. ParkerOregon Supreme Court · 1895
20 more not listed; retrieve them via the Exa API.
3Cited by16 opinions
- Keljikian v. Star Brewing Co.Massachusetts Supreme Judicial Court · 1939
- Hacker v. BeckMassachusetts Supreme Judicial Court · 1950
- Marsch v. Southern New England RailroadMassachusetts Supreme Judicial Court · 1920
- Keown v. KeownMassachusetts Supreme Judicial Court · 1918
- Abbott v. BeanMassachusetts Supreme Judicial Court · 1936
11 more not listed; retrieve them via the Exa API.