23 Barb. 431 | N.Y. Sup. Ct. | 1856
The position, that the plaintiff is not entitled to recover under a declaration in assumpsit containing only the common counts, because the proof showed a special contract between the parties subsisting, and in full force, is fully answered by the decision of this court on a former occasion, and also by the decision of the court of appeals in this case. In this court, it was held, that the special contract was void by the statute of frauds ; that the plaintiff having transferred his property to the defendant under a contract as to payment which was void but not illegal, if the defendant has failed to perform the contract, and is in default, the law implies a promise on his part to pay the plaintiff the balance of the value of the property unpaid, and that the proper and only remedy of the plaintiff was that which he had selected. In the court of appeals, the common counts were held to be appropriate, upon the well settled and familiar doctrine, that a party may recover under the common counts in assumpsit, the stipulated price due on a special contract not under seal, when such contract has been executed. That ground is sufficient, if the doctrine applies to cases where by the contract the mode of payment was to be special—in something else than money—as well as to those where the payment was to be in money; as to which some doubt has be.en entertained. (See Underhill v. Pomeroy, 2 Hill, 603 ; S. C. in error, 1 id. 388.) It is not material in this ease, which court has presented the sound and proper basis for the decisions ; the decision of the latter court is all that is important.
There was not, I think, any error in the instruction to the jury, in substance, that if the contract between the parties was, that the plaintiff was to take the obligation which Campbell was to give the defendant for the carding machine property, then it became the duty of the defendant, as part of the contract, to procure the obligation and deliver it in payment; and, not having done so, he has failed to perform on his part, and the
It was not a question in the case, whether by the terms of the contract between the parties the defendant undertook and agreed that he would be responsible that Campbell should go on and complete his purchase of the carding machine property. The plaintiff did not pretend, and there was no evidence tending to prove, that the contract contained such terms: he relied.
I think the charge, and the several refusals to charge, were correct, and that a new trial should be denied.
T. R. Strong, Welles and Smith, Justices.]