83 N.Y.S. 609 | N.Y. Sup. Ct. | 1903
The complaint contains two canses of action. The first is for a certain quantity of limestone alleged to have been sold and delivered to defendant at an agreed price. The contract thus sued upon seems to have been wholly executed, and the allegations are in the form usually adopted in an action for goods sold and delivered. The second cause of action also seeks a recovery for limestone alleged to have been sold and delivered, but is phrased in an unusual form. It states that on a certain date the plaintiff and defendant entered into an agreement whereby the defendant agreed, among other things, in consideration of plaintiff’s delivering to said defendant a certain quantity of limestone, to pay plaintiff therefor within sixty days a certain price, and further to pay the amount claimed to be due under the first cause of action, and further to waive and release said plaintiff from any and all claims and demands, if any, said defendant might then, or in the future have or claim to have against said plaintiff by reason of or arising out of the said transactions, or in any way connected therewith. It is then alleged that plaintiff caused the limestone to be delivered to defendant, and fully carried out all the conditions of said agreement by him to be performed. So far as concerns the sale and delivery of the
Demurrer sustained, with costs.