Bradley v. Mirick
New York Supreme Court
Appeal by defendant from an order of the Monroe Special Term setting aside a nonsuit and granting a new trial. The action was brought to recover, as damages, the value of 432 pounds of spearmint oil, which was borrowed by the defendant from the plaintiff’s intestate to fill an order that the defendant had obtained for that quantity, upon his promise to return to the plaintiff’s intestate a like quantity and quality of oil.
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Appeal by defendant from an order of the Monroe Special Term setting aside a nonsuit and granting a new trial. The action was brought to recover, as damages, the value of 432 pounds of spearmint oil, which was borrowed by the defendant from the plaintiff’s intestate to fill an order that the defendant had obtained for that quantity, upon his promise to return to the plaintiff’s intestate a like quantity and quality of oil. December 6, 1876, the plaintiff’s intestate, Benjamin J. Bradley, deceased, recovered a judgment, upon an inquest taken at the-Wayne Circuit, for the value of the…
1Opinion of the Court
Hardin, J.:
Assuming the contract set out in the complaint, and supported by evidence upon the trial, to be one of sale, as we think it was, as is fully settled by authority {Marsh v. Richards, 3 Hun, 550), we are led to inquire whether a demand was necessary.
Though a sale, though the title passed to the borrower, he was under an agreement to pay in spearmint oil of like quality and quantity. {Carpenter v. Griffin, 9 Paige, 314; Smith v. Clark, 21 Wend., 83.)
Obligation to pay in kind and quality, as no time and place was named, was when demand should be made therefor. {Foster v. Pettibone, 3…
2Cases cited7 opinions
- Tooley v. . BaconNew York Court of Appeals · 1877
- The People v. . ColeNew York Court of Appeals · 1871
- Beals v. GuernseyNew York Supreme Court · 1811
- Smith v. ClarkNew York Supreme Court · 1839
- Glass v. BeachSupreme Court of Vermont · 1833
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