Obregon v. De Mier
New York Court of Common Pleas
This was an action brought to recover $12,000, in American gold, transmitted by plaintiffs to defendant, with instructions to purchase silver with the amount and to ship the silver to plaintiffs.
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This was an action brought to recover $12,000, in American gold, transmitted by plaintiffs to defendant, with instructions to purchase silver with the amount and to ship the silver to plaintiffs. On the trial, defendant proved that the order for the purchase and shipment of silver had been countermanded by plaintiffs, who thereupon drew on the defendant, at sixty days’ sight, for the amount, to the order of a third party; that defendant accepted the draft, which was duly passed to the third party, and by him discounted. When the draft matured defendant had become insolvent, and the draft went…
1Opinion of the CourtVan Hoesen, J.
I am of opinion that the pleadings should be changed conformably to the proposition made in open court, at the trial, by the counsel for the defendant.
The complaint should be amended so as to allege a demand for money had and received, or any other demand arising from a breach of contract. I think such an amendment to be absolutely indispensable, for this case does not fall within the relaxed rule established by Wood agt. Henry (40 N. Y., 124).
It is barely possible that a recovery upon the present pleading might be sustained, under the decision in Matthews agt. Cady (61 N. Y., 651), by…
2Cases cited4 opinions
- Greentree v. . RosenstockNew York Court of Appeals · 1875
- Goodrich v. DunbarNew York Supreme Court · 1854
- Wood v. . HenryNew York Court of Appeals · 1869
- Alliance Insurance v. ClevelandNew York Supreme Court · 1856
3Cited by1 opinion
- Agar v. HainesNew York Court of Common Pleas · 1888