Whitcomb v. Hungerford
New York Supreme Court
THIS is an appeal from a judgment entered on the decision of a single judge at the circuit, a trial by jury having been waived by the parties. The action was commenced in October, 1860, to recover $1000 damages for the wrongful conversion of personal property. The original complaint alleged a sale and delivery of a chestnut mare to the plaintiff, by the defendant, and a subsequent tortious conversion of the mare by him.
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THIS is an appeal from a judgment entered on the decision of a single judge at the circuit, a trial by jury having been waived by the parties. The action was commenced in October, 1860, to recover $1000 damages for the wrongful conversion of personal property. The original complaint alleged a sale and delivery of a chestnut mare to the plaintiff, by the defendant, and a subsequent tortious conversion of the mare by him. The defendant answered, denying specifically the allegations in the complaint, and alleging title in himself. The cause proceeded under these pleadings to the end of the…
1Opinion of the CourtCeebke, J.
I. The original complaint alleges the conversion of the mare, by the defendant, and demands damages “by reason thereof.” This, therefore, is an action ex delicto; and, in order to sustain it, it wras necessary to show, by the contract, that the plaintiff was entitled to the possession, at the time of the alleged conversion. The contract, however, is .clearly a contract to sell and give possession to the plaintiff at a future day, on the payment of $900. In short, it is an executory and not an executed contract. It does not transfer or convey the property and possession in prcesenti, but in…
2Cases cited3 opinions
- Walter v. . BennettNew York Court of Appeals · 1857
- Ransom v. WetmoreNew York Supreme Court · 1862
- Van Buskirk v. PurintonThe Superior Court of New York City · 1829
3Cited by4 opinions
- Woodruff v. DickieNew York Supreme Court · 1866
- Starr v. SilvermanAppellate Terms of the Supreme Court of New York · 1898
- Woodruff v. DickieThe Superior Court of New York City · 1866
- Livermore v. BainbridgeNew York Supreme Court · 1873