Kirtz v. Peck
New York Supreme Court
Appeal from judgment entered on verdict of Monroe circuit and from order denying motion for a new trial. The action was brought on a promissory note made by the defendant of date May 27, 1875, for $1,500, payable to the order of the plaintiff’s intestate on the 1st day of March, 1876, with interest.
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Appeal from judgment entered on verdict of Monroe circuit and from order denying motion for a new trial. The action was brought on a promissory note made by the defendant of date May 27, 1875, for $1,500, payable to the order of the plaintiff’s intestate on the 1st day of March, 1876, with interest. The defendant, by his answer, alleges that prior to May nineteen, he had purchased of the plaintiff and her husband a farm, that they refused to deliver possession, unless paid for it, that the matter was compromised at the sum of $1,500, and the agreement, hereinafter-mentioned, was made with…
1Opinion of the CourtBradley, J.
As viewed here, the principal question is, whether the plaintiff’s intestate could maintain the action on the note without having tendered or offered to the defendant performance of her covenant in the contract.
If the covenant on her part, or an essential part of it, which constituted the consideration for the defendant’s promise to pay expressed in the note, and such promise. were dependent, it is difficult to see how the recovery can be supported, assuming that such covenant on her part had not been performed, because when the acts of performances of the parties to an executory contract…
2Cases cited8 opinions
- Koehler v. . AdlerNew York Court of Appeals · 1879
- Tompkins v. ElliotNew York Supreme Court · 1830
- Grant v. . JohnsonNew York Court of Appeals · 1851
- Lewis v. McMillenNew York Supreme Court · 1863
- Divine v. DivineNew York Supreme Court · 1870
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