Lewis v. McMillen
New York Supreme Court
THIS action was brought to recover the amount of a promissory note for $1000, made by the defendant McMillen as principal and the other defendants as his sureties, and was tried at the Ontario circuit in April, 1859. It was proved on the trial that the plaintiffs, who were assignees of one Cuyler Trask, on the 21st April, 1857, entered into a contract with McMillen to sell to him a farm in the town of Victor, containing about 96 acres of land, at $34.50 per acre.
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THIS action was brought to recover the amount of a promissory note for $1000, made by the defendant McMillen as principal and the other defendants as his sureties, and was tried at the Ontario circuit in April, 1859. It was proved on the trial that the plaintiffs, who were assignees of one Cuyler Trask, on the 21st April, 1857, entered into a contract with McMillen to sell to him a farm in the town of Victor, containing about 96 acres of land, at $34.50 per acre. By the contract McMillen agreed to pay $1500 of the purchase money as follows: $300 on the 15th May, 1857; $200 on the 1st day of…
1Opinion of the Court
By the Court, E. Darwin Smith, J.
The promissory note upon which this action is brought being collateral to the installment of the same amount upon the contract between the plaintiffs and the defendant McMillen, an action thereupon clearly cannot be maintained, unless the plaintiff could maintain an action on the contract, for the principal debt. By the terms of the contract, the defendant McMillen was to pay the $1000, the amount of the note, to the plaintiffs, on the 1st of May thereafter, (May 1st, 1858,) and on such payment the plaintiffs were to convey, by a good and sufficient deed, the…
2Cases cited4 opinions
- People v. CookNew York Supreme Court · 1852
- Tompkins v. ElliotNew York Supreme Court · 1830
- More v. SmedburghNew York Court of Chancery · 1841
- Judson v. WassNew York Supreme Court · 1814
3Cited by4 opinions
- Ewing v. . WightmanNew York Court of Appeals · 1901
- Smith v. McCluskeyNew York Supreme Court · 1866
- Lewis v. McMillenNew York Supreme Court · 1863
- Kirtz v. PeckNew York Supreme Court · 1887