Spalding v. Vandercook
New York Supreme Court
This was an action of assumpsit, tried at the Rensselaer circuit, in January, 1827, before the Hon. William A. Du-er, one of the circuit judges. The declaration contained a count of payee against maker on a promissory note for $131, dated 15th August, 1826, payable 1st January, 1827, and also the common money counts.
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This was an action of assumpsit, tried at the Rensselaer circuit, in January, 1827, before the Hon. William A. Du-er, one of the circuit judges. The declaration contained a count of payee against maker on a promissory note for $131, dated 15th August, 1826, payable 1st January, 1827, and also the common money counts. The defendant pleaded non assumpsit as to all the promises, &c. in the declaration mentioned, except as to the sum of $89, parcel, &c. and as to that sum, a tender before suit brought. The plaintiff replied confessing the tender as to the $89, and accepting the same, and joining…
1Opinion of the Court
By the Court, Savage, Ch. J.
This case presents two points : 1. Whether the partial failure of consideration can. be given in evidence, to reduce the amount of the plaintiff’s • recover}-, and 2. Whether the payment of money into court, precludes all defence.
In Becker v. Vrooman, (13 Johns. R. 302,) it is settled, that deceit in the sale of a chattel may be shewn in bar, or in mitigation. The same principle will admit the defence in this case, provided the defendant is not precluded by the payment of money into court generally. The cases on this point are not uniform; they are all considered…
2Cited by39 opinions
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- Burton v. StewartNew York Supreme Court · 1829
- Supply Ditch Co. v. ElliottSupreme Court of Colorado · 1887
- Eaton v. . WellsNew York Court of Appeals · 1880
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