Clark v. Gifford
New York Supreme Court
This was an action of assumpsit, tried at the Washington circuit in November, 1830, before the Hon. Esek Cowen, one of the circuit judges. The action was founded on a note in writing, dated 27th October, 1821, by which the defendant promised to pay the plaintiff $200—one half of the sum in two years and the residue in three years from date, the payment to be made in sawing.
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This was an action of assumpsit, tried at the Washington circuit in November, 1830, before the Hon. Esek Cowen, one of the circuit judges. The action was founded on a note in writing, dated 27th October, 1821, by which the defendant promised to pay the plaintiff $200—one half of the sum in two years and the residue in three years from date, the payment to be made in sawing. The signature of the defendant was proved, also that a demand of payment in sawing was made in December, 1829. The plaintiff rested. The defendant moved for a nonsuit, insisting that to entitle the plaintiff to recover, it…
1Opinion of the Court
By the Court,
Sutherland, J.
The plaintiff was properly nonsuited. The note or instrument on which this action was brought, and the deed which was the consideration upon which it was given, were never absolutely delivered. The testimony of Dr. Scott is clear and explicit upon this subject. There was nothing like an absolute delivery of the deed, ei*313iher technically or according to the intention of the parties. The term delivery does not appear to have been used in the course of the transaction ; the papers were deposited with the witness, to be delivered when the parties should subsequently…
2Cases cited2 opinions
- Wheelwright v. WheelwrightMassachusetts Supreme Judicial Court · 1807
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