Boyd v. Hitchcock
New York Supreme Court
THIS was an action of assumpsit, for five thousand do!e Jr i lars. The declaration contained counts for goods, wares, and merchandises, sold and delivered, for five thousand dollars; and a quantum valebant thereon; the usual money counts for the like sum; and an insimul computassent, &c.
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THIS was an action of assumpsit, for five thousand do!e Jr i lars. The declaration contained counts for goods, wares, and merchandises, sold and delivered, for five thousand dollars; and a quantum valebant thereon; the usual money counts for the like sum; and an insimul computassent, &c. The defendant pleaded, 1. JYon assumpsit; 2. Payment; 3. “ That after making the said promises and undertakings, in the said declaration mentioned, and before the commencement ot the suit, to wit, on the 7tn of Jlugust, 1818, at the city of New-York, he, the defendant, caused to be delivered, to the…
1Opinion of the CourtPlatt, J.
The question is, whether the third plea sets out such an accord and satisfaction as will bar the action ?
The general rule is well settled, that the payment of a less sum of money than the whole debt, without a release, is no satisfaction ofathe plaintiff’s claim. (Cumber v. Warn, 1 Stra. 426. Harrison v. Wilcox and Close, 2 Johns. Rep. 449. Fitch v. Sutton, 5 East, 232. Seymour v. Minturn, 17 Johns. Rep. 169.) And a mere agreement to accept less than the real debt, would be nudum pactum. (Heathcote v. Crookshanks, 2 Term Rep. 24.) But, in my judgment, this case is distinguishable from the…
2Cases cited1 opinion
- Sheehy v. Mandeville & JamessonSupreme Court of the United States · 1810
3Cited by38 opinions
- Ryan v. . WardNew York Court of Appeals · 1872
- First National Bank of Wellsburg v. KimberlandsWest Virginia Supreme Court · 1880
- Jaffray v. . DavisNew York Court of Appeals · 1891
- Waydell v. LuerCourt for the Trial of Impeachments and Correction of Errors · 1846
- Clayton v. ClarkMississippi Supreme Court · 1896
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