Cooper v. Kane
New York Supreme Court
This was an action of replevin, tried at the Albany circuit in October, 1835, before the Hon. Hiram Denio, then one of the circuit judges. The action was in the detinet for detaining a 'quantity of sand taken from a lot in the city of Albany belonging to the plaintiff, which the defendant had excavated under a contract with the plaintiff, so as to make the lot conform to a profile or "plan of the streets established by the corporation.
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This was an action of replevin, tried at the Albany circuit in October, 1835, before the Hon. Hiram Denio, then one of the circuit judges. The action was in the detinet for detaining a 'quantity of sand taken from a lot in the city of Albany belonging to the plaintiff, which the defendant had excavated under a contract with the plaintiff, so as to make the lot conform to a profile or "plan of the streets established by the corporation. The contract was in writing; the defendant was to excavate the lot and make the necessary embankments within a limited time, for which he was to be paid by the…
1Opinion of the Court
By the Court,
Nelson, Ch. J.
I am inclined to the opinion that the evidence of the custom in respect to contracts like the one out of which this action has arisen, by way of explaining it, and which was offered by the defendant for that purpose, was admissible. It did not go to vary any express or necessarily implied stipulations between the parties therein contained, but rather to establish what amounted to a complete performance agreeably to the presumed understanding of the parties.
Mr. Starkie says, 2 Starkie’s Ev. 258, 259, “ where parties have not entered into any express and specific…
2Cited by13 opinions
- Citizens & Southern Bank v. Union Warehouse & Compress Co.Supreme Court of Georgia · 1924
- Morningstar v. CunninghamIndiana Supreme Court · 1887
- Tierney v. New York Central & Hudson River RailroadNew York Court of Appeals · 1879
- Peet v. Chicago & Northwestern Railway Co.Wisconsin Supreme Court · 1866
- Everitt, Seedsman v. Indiana Paper Co.Indiana Court of Appeals · 1900
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