Marcus v. Thornton
The Superior Court of New York City
The action was brought to recover the value of one hundred and two cases of Japan ear-shells, sold and delivered to the defendants at the agreed price of sixteen cents per pound.
Read the full summary
The action was brought to recover the value of one hundred and two cases of Japan ear-shells, sold and delivered to the defendants at the agreed price of sixteen cents per pound. The answer admits the purchase, but avers that the defendants were induced to make it by reason of the fraudulent representation of the plaintiff’s agent, and upon the express warranty that the bulk not examined was like some cases which were opened and inspected ; that the shells contained in the cases thus opened and inspected were sound, but that the bulk was subsequently found to be worm-eaten and of greatly…
1Opinion of the Court
By the Court.—Freedman, J.
It is true, as a general rule, that when a contract of sale is effected by a broker, the memorandum of sale and the bought *413and sold notes are the evidence of the contract, and that when there is no variance between said notes, no parol evidence is admissible to vary the contract.
But the first question in this case is, whether the contract of sale was effected by the broker, or made independently of him by and between the parties themselves.
Upon the trial the testimony introduced by the defense showed:
That the plaintiff is a resident of London, but carries on business…
2Cases cited4 opinions
- Reed v. . RandallNew York Court of Appeals · 1864
- Day v. . PoolNew York Court of Appeals · 1873
- Sprague v. BlakeNew York Supreme Court · 1838
- Weaver v. WisnerNew York Supreme Court · 1868