Considerant v. Brisbane
The Superior Court of New York City
This action came before the court, on an appeal from an order sustaining a demurrer to the complaint, which stated two causes of action.
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This action came before the court, on an appeal from an order sustaining a demurrer to the complaint, which stated two causes of action. The first was, that the defendant made his promissory note in writing in these words, viz.: “ $5,000 New York, March 1, 1855. “ On the 1st day of July, 1856, I promise to pay to V. Considerant, as executive agent of the company, Bureau, Guillon, Godin & Co., the sum of five thousand dollars, for which I am to receive stock of said company, known as premium stock, ( The complaint further stated, that the defendant delivered this note to the plaintiff: that…
1Opinion of the Court
By the court—Bosworth, Justice.
Each of the contracts described in the complaint, by its clear legal import, required the plaintiff to tender to the defendant, at the time fixed for the payment of the $5,000, stock of the kind specified, and to that amount. A transfer of the stock and payment of the money were dependent acts, to be concurrently performed. To place the defendant in default, and enable the plaintiff to maintain an action upon the contract, it was necessary for him to offer to transfer or deliver the stock, on the day designated for payment. In an action upon such a contract, to…
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