Wheadon v. Olds
New York Supreme Court
This was an action of assumpsit, tried at the Onondaga circuit in March, 1836, before the Hon. Daniel Moseley, one of the circuit judges. The defendant agreed to sell to the plaintiff from sixteen, to, twenty hundred bushels of oats, at forty-nine cents per bushel.
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This was an action of assumpsit, tried at the Onondaga circuit in March, 1836, before the Hon. Daniel Moseley, one of the circuit judges. The defendant agreed to sell to the plaintiff from sixteen, to, twenty hundred bushels of oats, at forty-nine cents per bushel. The delivery of the oats was commended by removing them from a store-house to a canal boat; tallies were kept, and when the tallies amounted to 500, it was proposed to guess at the remainder ; and after a while it. was agreed between the parties to call the whole quantity 1,900 bushels,, and the plaintiff accordingly paid for that…
1Opinion of the Court
By the Court, Cowen, J.
The objection at variance from the bill of particulars was too general. It should have been stated whether it was in quantity, or sum, or in what else.
The mistake as proved went not only to the quantity measured, but the jury found, under the charge of the judge, that *176relatively it influenced the entire agreement to take the oats at 1,900 bushels. One ingredient of estimating the residue, as talked of, was the assuming that the supposed 500 bushels was one-fourth of the pile, which would operate unfavorably to the plaintiff", if he reasoned from the size of the smaller…
2Cases cited1 opinion
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