Lawrence v. Simons
New York Supreme Court
Motion to set aside report of referees, and for a new trial. The action was assumpsit. The declaration contained the common counts for money, merchandise, and work and labor. The defendants pleaded the general issue, and gave notice of set-off, in the usual form, and for lumber sold by the defendants to the plaintiff. The cause was thereupon referred to referees.
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Motion to set aside report of referees, and for a new trial. The action was assumpsit. The declaration contained the common counts for money, merchandise, and work and labor. The defendants pleaded the general issue, and gave notice of set-off, in the usual form, and for lumber sold by the defendants to the plaintiff. The cause was thereupon referred to referees. On the trial the plaintiff proved an account against the defendants, consisting of various items, amounting to $21,095,08; and the defendants proved an offset, amounting to $17,528,44, leaving a balance of $3566,64 due to the…
1Opinion of the Court
By the Court, Allen J.
It is not material to inquire whether the plaintiff should not have sought his remedy by counting upon the special contract between the parties, rather than upon the common assumpsit. The objection to the form of the action, not having been taken upon the trial, cannot be made available at this time. (Underhill v. Pomeroy, 2 Hill, 603 ; S. C. in error, 7 Id. 388.) The money advanced by the plaintiff to the defendants, and to recover which this action was brought, was advanced on the special contract of the *35810th March, 1842, and in payment for lumber delivered, and to be…
2Cases cited2 opinions
- Ketchum & Sweet v. EvertsonNew York Supreme Court · 1816
- Wheeler v. BoardNew York Supreme Court · 1815
3Cited by5 opinions
- Havens v. . PattersonNew York Court of Appeals · 1870
- Potomac Ins. Co. v. NicksonUtah Supreme Court · 1924
- Strack v. HurdNew York Supreme Court · 1892
- Hall v. Boston & Worcester RailroadMassachusetts Supreme Judicial Court · 1867
- Gibb v. Redway Manufacturing Co.New York Supreme Court · 1897