Williams & Hall v. Birch
The Superior Court of New York City
Motion to conform the pleadings to the facts proved. This action was brought to recover the value of six bales of silk, or the silk itself, sold by the plaintiffs to the defendants, John S. Birch, L. B. Nutting & William G. Nutting, composing the firm of John S. Birch & Company, on the grounds that such sale was procured by the fraud of the latter; that Tilt, as the agent of Thorp, received the silk from John S. Birch & Company, knowing it had been obtained by the frauds…
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Motion to conform the pleadings to the facts proved. This action was brought to recover the value of six bales of silk, or the silk itself, sold by the plaintiffs to the defendants, John S. Birch, L. B. Nutting & William G. Nutting, composing the firm of John S. Birch & Company, on the grounds that such sale was procured by the fraud of the latter; that Tilt, as the agent of Thorp, received the silk from John S. Birch & Company, knowing it had been obtained by the frauds stated, “ and without paying any consideration therefor;” that Newman had in his possession four of the bales, which he…
1Opinion of the Court
By the Court—Bosworth, Ch. J.
We understand that the Judge, at the trial, in holding that the question of usury did not arise in this case, decided, and intended to be understood as deciding, that such fact could not be proved under the pleadings; and that the plaintiffs for that reason could not claim any benefit from the proof given of it, in the progress of the trial.
This Court at General Term, affirmed both of these views. If the Court decided erroneously, the plaintiffs’ remedy by appeal is perfect.
It is only on the assumption that the decision is correct, and would be erroneous had the…
2Cases cited5 opinions
- Clark v. DalesNew York Supreme Court · 1855
- Hill v. TuckerSupreme Court of the United States · 1852
- Hart v. HudsonThe Superior Court of New York City · 1857
- Harrower v. HeathNew York Supreme Court · 1855
- Gasper v. AdamsNew York Supreme Court · 1857