Tilton v. Alcott
New York Supreme Court
This action was brought to recover the amount of two promissory notes, made by the defendant and payable to the order of the plaintiff and of one Wilmerding, but of which the plaintiff was the owner at the time of the suit.
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This action was brought to recover the amount of two promissory notes, made by the defendant and payable to the order of the plaintiff and of one Wilmerding, but of which the plaintiff was the owner at the time of the suit. The defense was that the defendant made an agreement with Tilton and Wilmerding by which he was to turn out and convey to them certain real estate upon the appraisal of two men; Tilton and Wilmerding to give their bond and mortgage back for the balance of the appraisal over their debt; that the appraisal was accordingly made, but Tilton and Wilmerding refused to execute'…
1Opinion of the Court
By the Court, Johnson, J.
It has been so often held in this state that an accord executory with tender of performance is no bar to an action, that the rule must be regarded as conclusively settled, and the question no longer open for discussion. (Brooklyn Bank v. De Grauw, 23 Wend. 343. Daniels v. Hallenbeck, 19 Id. 408. Hawley v. Foote, Id. 516. Russell v. Lytle, 6 Id. 390. Anderson v. Highland Turnpike Co., 16 John. 86. Watkinson v. Inglesby, 5 Id. 386.) To constitute a defense in such a case there must be an acceptance. *599The rule has been constantly applied where the question has arisen both…
2Cases cited2 opinions
- Anderson v. The President, Directors, & Co. of the Highland TurnpikeNew York Supreme Court · 1819
- Brooklyn Bank v. De GrauwNew York Supreme Court · 1840
3Cited by22 opinions
- Kromer v. . HeimNew York Court of Appeals · 1879
- Arnett v. SmithNorth Dakota Supreme Court · 1902
- First Nat. Bank of Arkansas City v. LeechCourt of Appeals for the Eighth Circuit · 1899
- Whitsett v. ClaytonSupreme Court of Colorado · 1880
- Geary v. PageThe Superior Court of New York City · 1862
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