Potter v. Gates
New York Supreme Court
Appeal from a judgment entered upon the report of a referee. The complaint contained two claims. The first was for goods sold and delivered. The second, on a special contract by which defendant was to draw logs to plaintiff’s mill, enough to make 100,000 feet of lumber, and to pay plaintiff $2 for sawing each 1,000 feet. And plaintiff alleged that defendant drew only enough to make about 40,000 feet, and had not paid for the sawing of these.
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Appeal from a judgment entered upon the report of a referee. The complaint contained two claims. The first was for goods sold and delivered. The second, on a special contract by which defendant was to draw logs to plaintiff’s mill, enough to make 100,000 feet of lumber, and to pay plaintiff $2 for sawing each 1,000 feet. And plaintiff alleged that defendant drew only enough to make about 40,000 feet, and had not paid for the sawing of these. The referee found, specifically, several matters of dealing between the parties. He found, substantially, that plaintiff had sawed for defendant 40,727…
1Opinion of the CourtLearned, P. J.
The first point made by defendant is that the referee erred in excluding a question tending to show payment. The ground of the objection was that the answer did not contain any allegation of payment. There is no doubt as to the rule that payment must be pleaded, and evidence of payment cannot be given under a general denial. The case of Quin v. Lloyd, 41 N Y. 349, is an exception, because the complaint was so drawn as to allege, not any definite amount for which defendant had become liable to plaintiff, but merely that a certain balance remained due after payments; and the court held that…
2Cases cited34 opinions
- Moses v. . McDivittNew York Court of Appeals · 1882
- Barnard v. AdamsSupreme Court of the United States · 1851
- Brown v. . GallaudetNew York Court of Appeals · 1880
- Hoyt v. United StatesSupreme Court of the United States · 1850
- Miller v. CovertNew York Supreme Court · 1828
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