Merrill v. Ithaca & Owego Rail Road
New York Supreme Court
This was an action of assumpsit, for work, labor and services, and materials found in the construction of a part of the rail road of the defendants. The declaration contained only the common counts.
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This was an action of assumpsit, for work, labor and services, and materials found in the construction of a part of the rail road of the defendants. The declaration contained only the common counts. The cause was heard before referees, who allowed the plaintiffs, under the quantum meruit count, to give evidence of the quantity of work done and of its value; notwithstanding that the defendants produced in evidence contracts in writing, signed and sealed by the parties, specifying the work to be done, the mode in which it should be done, the prices to be paid for it, and the manner in which the…
1Opinion of the Court
By the Court, Cowen, J.
After such an exact tacit adherence, on the side of the plaintiffs, as appears from the evidence in this case, to the written terms of the contracts, without one word that they intended to alter their rates of charge, it would be a fraud upon the company were they allowed to change their ground. It is not denied that they may resort to the general counts. Both parties having assented that the work should go forward after the day, that may be so. It is clearly so as to line C. and section 4, if *589they are not touched by the general provisions of the contract in respect to…
2Cases cited12 opinions
- Lawrence v. BarkerNew York Supreme Court · 1830
- Nichols v. GoldsmithNew York Supreme Court · 1831
- Clark v. VorceNew York Supreme Court · 1836
- Heartt v. CorningNew York Court of Chancery · 1831
- Farmers & Mechanics' Bank v. BoraefSupreme Court of Pennsylvania · 1829
7 more not listed; retrieve them via the Exa API.
3Cited by81 opinions
- Vicksburg & Meridian Railroad v. O'BrienSupreme Court of the United States · 1886
- Viele v. Germania InsuranceSupreme Court of Iowa · 1868
- Hawkins v. United StatesSupreme Court of the United States · 1877
- People v. RectorNew York Supreme Court · 1838
- National Ulster County Bank v. MaddenNew York Court of Appeals · 1889
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