Harmony v. Bingham
The Superior Court of New York City
Motion to set aside the report of a referee upon a case and exceptions. The action was to recover damages for the breach of certain covenants, on articles of agreement under seal between the plaintiff and the defendants.
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Motion to set aside the report of a referee upon a case and exceptions. The action was to recover damages for the breach of certain covenants, on articles of agreement under seal between the plaintiff and the defendants. The. suit was commenced before the Code, and the declaration, the sufficiency of which to cover the demands of the plaintiff was denied by the counsel for the defendants, was in the words following:— Superior Oowrt, of the Term of October, one thousand eight hundred and forty-six. City and County of Hew York.—ss. Manuel X. Harmony complains of Thomas Bingham, Jacob Dock,…
1Opinion of the CourtBy the Court. Duer, J.
We entirely agree with the referee, that the obligation of the defendants, resulting from their covenant to deliver the goods of the plaintiff at Independence within a stipulated period, was absolute and unconditional, and that its effect as such was not at all varied by the clause which immediately follows in the articles of agreement. This subsequent clause was plainly inserted for the benefit of the defendants, by limiting the penalty, to which, in the event of a delay in the delivery of the goods beyond the specified period, they would be liable, to a sum not exceeding the freight they…
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