Dox v. Dey
New York Supreme Court
This was an action of assumpsit, tried at the Seneca cir-cup jn April, 1829, before the Hon. Daniel Mosely, one , •r. . of the circuit judges.
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This was an action of assumpsit, tried at the Seneca cir-cup jn April, 1829, before the Hon. Daniel Mosely, one , •r. . of the circuit judges. The action was founded on a contract in these words : “ I have this day sold to John L. Dox & Co. twelve hundred and eighty bushels of first quality merchantable wheat, to be delivered onboard of boats at or near the store-house of David Brooks, in the town of Romulus, at any time the said Dox & ^°‘ may reclu‘re after the first day of April next; and am to receive for the same seventy five cents per bushel, on the first 0f September next, and have…
1Opinion of the Court
By the Court,
Marcy, J.
It was contended on the trial, and is insisted here, that there is a fatal variance between the first count of the declaration and the agreement produced in support of it, because in declaring, notice is not taken of the one dollar stated to have been paid on entering into the contract. What is said in relation to this payment is not a substantive part of the agreement, and any mention of it in pleading might therefore have been dispensed with without prejudice to the party setting up the agreement. It was nothing more than an acknowledgment incorporated in the agreement…
2Cited by31 opinions
- Fish v. DodgeNew York Supreme Court · 1847
- Dey v. DoxNew York Supreme Court · 1832
- Taylor v. ReadNew York Court of Chancery · 1834
- Hinckley v. BeckwithWisconsin Supreme Court · 1860
- Watkins v. StevensNew York Supreme Court · 1848
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