Divine v. Divine
New York Supreme Court
THIS action was commenced in a justice’s court, upon a promissory note for $150, dated April 15, 1868, payable 1st of November, 1868, with interest. The note was given by the defendant to the plaintiff; the consideration of it was for part payment of lands agreed to be purchased by an executory contract between the parties, under their hands and seals, of the same date as the note.
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THIS action was commenced in a justice’s court, upon a promissory note for $150, dated April 15, 1868, payable 1st of November, 1868, with interest. The note was given by the defendant to the plaintiff; the consideration of it was for part payment of lands agreed to be purchased by an executory contract between the parties, under their hands and seals, of the same date as the note. There was judgment for the plaintiff, in the justice’s court, and an appeal to the county court, where the cause was again tried by a jury. By the terms of the executory contract, a mortgage upon the land was to be…
1Opinion of the Court
By the Court, Potter, J.
This action being upon a note, between the original parties to it, the consideration could be inquired into upon the trial, and it was subject to the equities existing between the parties. The note was given for a part of the consideration money of the premises described in the executory agreement; was dated the same day ; was part of the same transaction; and may be read and interpreted with the agreement, as a part of it, or as a waiver of its terms, to that extent. The note was a substitute for the payment of the sum therein agreed to be paid at the time of the…
2Cases cited3 opinions
- Beecher v. . ConradtNew York Court of Appeals · 1855
- Grant v. . JohnsonNew York Court of Appeals · 1851
- Williams v. HealeyNew York Supreme Court · 1846
3Cited by7 opinions
- Ewing v. . WightmanNew York Court of Appeals · 1901
- McCroskey v. LaddCalifornia Supreme Court · 1892
- Underwood v. TewWashington Supreme Court · 1893
- Supreme Housing Corp. v. SchreiberAppellate Terms of the Supreme Court of New York · 1924
- First National Bank v. SpearSouth Dakota Supreme Court · 1899
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