Reports of Cases in Law and Equity in the Supreme Court of the State of New York Volume 4

Reports of Cases in Law and Equity in the Supreme Court of the State of New York Volume 4

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This historic book may have numerous typos and missing text. Purchasers can download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1877 edition. Excerpt: ...the plaintiff has been allowed to recover, in an action for money had and received, for money advanced upon a contract, as upon a rescission of it presumed from mere delay, without showing some violation of the contract by the party sought to be charged. The great difficulty upon this branch of the plaintiff's case, however, is that there is an entire want of evidence that the parties had not, up to the time of the trial, continued their transactions under the conract. The cessation of operations by the manuLawrence v. Simons. facture and delivery of lumber by the defendants, and the receipt thereof by the plaintiff under the agreement, was a fact to be proved by the plaintiff, and not to be disproved by the defendants, and was a fact material to the issue. ( Wheeler v. Board, sup.) The presumption is, until the contrary is shown, that a contract is still in force, and that the parties continue to act under and abide by it. (Low v. Edmunston, 5 Iredell, 354.) But the plaintiff asks us to presume a fact, of which there is no evidence, and from that presumed fact, draw a legal inference that the contract was rescinded. This we cannot do, when all the facts proved are entirely consistent with a different conclusion, and with a state of facts which would furnish a good defence to the action. And if the referees, as was contended upon the argument, acted upon the presumption that the contract was rescinded by reason of the lapse of time between the last transaction under it and the commencement of the suit, or the time of trial, then they clearly erred in rejecting proof offered by the defendants, that the parties acted under it through the season of 1843. The time was material. A discreet man might well inferan abandonment of a contract by more

Product details

  • Paperback | 248 pages
  • 189 x 246 x 13mm | 449g
  • Miami Fl, United States
  • English
  • black & white illustrations
  • 1236610512
  • 9781236610515