Cook v. Ferral's Administrators
New York Supreme Court
Error from the Onondaga common pleas. Cook sued Thomas Ferral in a justice’s court. The plaintiff “ declared on a book account, and also on a contract for 100 bushels of oats, which defendant failed to deliver according to agreement.” The defendant pleaded orally the general issue and a set-off, and also, “ & former suit in abatement.”
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Error from the Onondaga common pleas. Cook sued Thomas Ferral in a justice’s court. The plaintiff “ declared on a book account, and also on a contract for 100 bushels of oats, which defendant failed to deliver according to agreement.” The defendant pleaded orally the general issue and a set-off, and also, “ & former suit in abatement.” The plaintiff proved that about a year before the trial, he agreed with the defendant for one hundred bushels of oats, to be delivered in a few days at the plaintiff’s house: the price agreed on was two shillings per bushel. He further proved that the defendant…
1Opinion of the Court
By the Court,
Sutherland, J.
I am inclined to think & demand of the oats before suit brought was necessary. The precise time of delivery was not fixed ; it was to be within a few days-—terms quite vague and indefinite; and it may reasonably be presumed, under such circumstances, that the parties contemplated a demand before suit brought. In Bach v. Owen, 5 T. R. 409, which was an action for not delivering a horse sold by the defendant to the plaintiff, it was held that a special request to deliver was necessary to be alleged and proved. Com. Dig. Pleader, C. 69. 1 Chitty’s Plead. 324,5. 1…
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