Mills v. Lewis
New York Supreme Court
A SEL SPICER and wife executed and delivered a mortgage to the defendant, to secure the payment of a portion of the purchase money of certain premises. A bond, executed by Spicer alone, accompanied the mortgage. One Baldwin, the agent of the plaintiff, negotiated the sale of a horse to the defendant, in exchange for the mortgage, under instructions from the plaintiff not to make the exchange unless the defendant would guaranty the payment of the mortgage.
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A SEL SPICER and wife executed and delivered a mortgage to the defendant, to secure the payment of a portion of the purchase money of certain premises. A bond, executed by Spicer alone, accompanied the mortgage. One Baldwin, the agent of the plaintiff, negotiated the sale of a horse to the defendant, in exchange for the mortgage, under instructions from the plaintiff not to make the exchange unless the defendant would guaranty the payment of the mortgage. The defendant refused to do this, but finally agreed to make the exchange and guaranty the collection of the mortgage. One Rundel! was…
1Opinion of the CourtMuliin, J.
The objection by the defendant’s counsel, that as the bond to which the mortgage was collateral was not assigned, the mortgage is of no validity, and the defendant cannot be made liable on a guaranty thereof, was not taken on the trial, and cannot be insisted on now. The plaintiff might, perhaps, have shown that the bond had been assigned, or there never in fact was one executed. It is enough .to know that he has had no opportunity to be heard, and the objection must be disregarded.
*181There being no fraud on the part of the plaintiff, or of Baldwin, and there being no motive which could induce…
2Cases cited5 opinions
- Nevius v. . DunlapNew York Court of Appeals · 1865
- Botsford v. McLeanNew York Supreme Court · 1866
- Batty v. CarswellNew York Supreme Court · 1806
- Scott v. McGrathNew York Supreme Court · 1849
- Botsford v. McLean & McPhersonNew York Supreme Court · 1864
3Cited by2 opinions
- O'Donnell v. HarmonNew York Court of Common Pleas · 1871
- Oregon Steamship Co. v. OtisNew York Supreme Court · 1883