McConihe v. . the New York and Erie Railroad Company
New York Court of Appeals
Appeal from the Supreme Court. Action to recover damages upon a contract made between Mallory, the plaintiff’s assignor, and the defendant, in December, 1849, by which Mallory was to furnish materials and build fifteen lumber cars for the defendant, for four hundred and seventy-five dollars per car, to be paid for in six months from the average delivery.
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Appeal from the Supreme Court. Action to recover damages upon a contract made between Mallory, the plaintiff’s assignor, and the defendant, in December, 1849, by which Mallory was to furnish materials and build fifteen lumber cars for the defendant, for four hundred and seventy-five dollars per car, to be paid for in six months from the average delivery. The contract was subsequently so modified that the company agreed to furnish for the cars the iron boxes of a peculiar model manufactured by the company, the expense of the boxes to be taken from the price of the cars. One four-wheel car was…
1Opinion of the CourtGrover, J.
The court at general term found the fact that Mallory would have completed the'cars had he not been prevented from so doing by the failure of the company to furnish the boxes therefor, according to their agreement. Had this been a contract for work and labor to be performed by Mallory for the defendant, and he had been prevented from completing the contract by a failure of the defendant to perform on its nart, he would have been entitled to recover for what he had done under the contract. (Koon v. Greenman, 7 Wend., 121; Jones v. Judd, 4 Comst., 412.) That is not this case. Mallory agreed to…
2Cases cited1 opinion
- Koon v. GreenmanNew York Supreme Court · 1831
3Cited by22 opinions
- In re the Estate of RothkoNew York Surrogate's Court · 1975
- Markham v. Houston Direct Navigation Co.Texas Supreme Court · 1889
- Bustamente v. StewartCalifornia Supreme Court · 1880
- Pittsburgh, Cincinnati, & St. Louis Railway Co. v. HeckIndiana Supreme Court · 1875
- Johnson v. CookWashington Supreme Court · 1901
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