Silvernail v. Cole
New York Supreme Court
This was an appeal by the defendant from a judgment of the Broome county court. The cause originated in a justice’s court; where the plaintiff declared upon a note or agreement, dated Dec. 6, 1850, executed by the defendant, by which he promised to pay to the order of the plaintiff, sixty days after date, fifty dollars, in shook staves at ten dollars a thousand.
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This was an appeal by the defendant from a judgment of the Broome county court. The cause originated in a justice’s court; where the plaintiff declared upon a note or agreement, dated Dec. 6, 1850, executed by the defendant, by which he promised to pay to the order of the plaintiff, sixty days after date, fifty dollars, in shook staves at ten dollars a thousand. The defendant put in an answer, in which he alledged that the note declared on, if the same was ever made by the defendant, was obtained and given without any consideration therefor, and was void for that reason; and that it was…
1Opinion of the Court
By the Court,
Shankland, J.
The legal proposition involved in the decision of this case is whether an executory promise to pay a sum of money to be recanted from a bargain which is void by the statute of frauds, is binding. The very statement of the case indicates the answer. It is not binding because there is no consideration to support it.
The contract for the sale of the timber growing on the defendant’s land, being by parol, was void. (1 Denio, 550. 5 Barb. 364.) Promising to pay money to be released from such a contract, is entirely without consideration, and the promise *687can not be…
2Cases cited2 opinions
- Green v. ArmstrongCourt for the Trial of Impeachments and Correction of Errors · 1845
- Pierrepont v. BarnardNew York Supreme Court · 1849
3Cited by6 opinions
- Owens v. LewisIndiana Supreme Court · 1874
- Gibson v. PelkieMichigan Supreme Court · 1877
- Montgomery v. HamiltonIndiana Supreme Court · 1873
- Thebaud v. HollisterNew Jersey Court of Chancery · 1883
- Risley v. SmithThe Superior Court of New York City · 1875
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