Tuttle v. Mayo
New York Supreme Court
THIS was an action of assumpsit. The declaration contained five counts. The first.was on a special agreement, for that whereas the defendant, on the 28th of July, at, &c. in consideration that the plaintiff, at the special instance and request of the defendants would , x cause to be delivered to the defendant 36 barrels of pork, 1 on sale, or to return the same to the plaintiff, when thereto afterwards requested, the defendant undertook, &c. to return the said 36 barrels of…
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THIS was an action of assumpsit. The declaration contained five counts. The first.was on a special agreement, for that whereas the defendant, on the 28th of July, at, &c. in consideration that the plaintiff, at the special instance and request of the defendants would , x cause to be delivered to the defendant 36 barrels of pork, 1 on sale, or to return the same to the plaintiff, when thereto afterwards requested, the defendant undertook, &c. to return the said 36 barrels of pork to the plaintiff, when thereunto requested, or otherwise the defendant would be the buyer thereof, or be…
1Per curiam
On the trial, the plaintiff gave in evidence the defendant’s receipt, for 36 barrels of pork, in store, to be delivered to the plaintiff’s order; no other evidence was given in support of the special count. But from the evidence it appeared, that part of the pork had been sold; and the money was in the defendant’s hands. With respect to another part of the pork, though there is no direct evidence that the defendant sold it, the inference is irresistible that he had sold it, and had the money in his pocket.
There is some contrariety in the books, on the question, whether a plaintiff, after…
2Cited by17 opinions
- Bannister v. Victoria Coal & Coke Co.West Virginia Supreme Court · 1908
- Donkersley v. LevyMichigan Supreme Court · 1878
- Lord & McCracken v. HendersonWest Virginia Supreme Court · 1909
- Bond v. CorbettSupreme Court of Minnesota · 1858
- Harris v. BradleyIndiana Supreme Court · 1857
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