Willis v. Morse
New York Supreme Court
Appeal from Chautauqua county court. Action by Henry W. Willis against Harvey Morse, for goods sold and delivered. The action was originally commenced in justice’s court, and a retrial was had in the county court upon the pleadings as returned by the justice.
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Appeal from Chautauqua county court. Action by Henry W. Willis against Harvey Morse, for goods sold and delivered. The action was originally commenced in justice’s court, and a retrial was had in the county court upon the pleadings as returned by the justice. In the first count the plaintiff alleges that he entered into an executory contract with the defendant by which he agreed to sell and deliver to him articles of personal property at the fixed and agreed sum of $165.50; that delivery and payment was postponed until the 21st day of February, on which day the property was to be delivered…
1Opinion of the CourtBarker, P. J.
For reasons which I will briefly state I think this appeal cannot stand. The appellant makes but one point, and that is that the cause of action set out in the complaint was not proved, and the plaintiff should have been nonsuited. He contends that the cause of action proved was upon contract, and the one alleged in the complaint was in tort. It is a well-settled rule, as'stated by the learned counsel for the appellant, that the character of the action must be determined by the complaint; and also, if the same states a cause of action ex delicto, it is not competent for the court on the trial…
2Cases cited6 opinions
- Conaughty v. . NicholsNew York Court of Appeals · 1870
- Neudecker v. . KohlbergNew York Court of Appeals · 1880
- Thurber & Stevenson v. Townsend & WilburNew York Court of Appeals · 1860
- Reilley v. . President, Etc., of D. H.C. Co.New York Court of Appeals · 1886
- Wavel v. . WilesNew York Court of Appeals · 1862
1 more not listed; retrieve them via the Exa API.
3Cited by1 opinion
- Bartlett v. BunnNew York Supreme Court · 1889