16 Mass. 161 (Mass. 1819), Newcomb v. Brackett

Citation:16 Mass. 161
Opinion Judge:Parker, C. J.
Party Name:John Newcomb v. James Brackett
Attorney:Loud, for the defendant. Metcalf, for the plaintiff.
Court:Supreme Judicial Court of Massachusetts
 
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Page 161

16 Mass. 161 (Mass. 1819)

John Newcomb

v.

James Brackett

Supreme Court of Massachusetts, Norfolk

October, 1819

Page 162

[Syllabus Material]

Page 163

The declaration was in case, "for that the said B. at, &c. on the 8th of August, 1808, by his memorandum in writing of that date, by him subscribed, acknowledged that he had then and there received of the plaintiff a bill of sale of one half of the sloop Union and her apparel, the consideration whereof the said B. then and there acknowledged in writing under his hand to be 200 dollars; which sum the said B. then and there, in said memorandum by him subscribed, promised the plaintiff to account to him for in a transfer of a deed which the said B. then held against one Jackson Field's estate, as soon as the plaintiff should pay said B. the residue of a debt to him, which should not exceed 100 dollars. And the plaintiff avers that the transfer of a deed against said J. Field's estate, mentioned in said memorandum, was to be a transfer, assignment and conveyance of the land, described in a certain deed made to said B. by one J. Field, which land the said B. then and there promised to convey to the plaintiff. And the plaintiff further avers that the said B. on the 19th of April, 1810, by his deed of release and quitclaim, by him duly executed, did release and quitclaim to one J. N. Arnold all the right, title and interest, which he the said B. then had to a certain real estate described in said deed, which said real estate was the same of which the said B. then held a deed from said J. Field, and of which the said B. was then in possession, and which he had in and by said memorandum engaged to transfer to the plaintiff; and upon which transfer he had engaged to account for said 200 dollars. And the plaintiff further avers, that the said B. had not before said 19th of April accounted to the plaintiff for said 200 dollars, in a transfer of a deed held by him, the said B., against said J. Field's estate. And the plaintiff further says, that the said B., by his deed aforesaid, made to said J. N. Arnold, has broken his promise aforesaid, and become unable to perform the same, according to the terms thereof. To the damage, &c."

The defendant demurred to this declaration, and assigned the following causes of demurrer.

1. That the plaintiff hath not alleged or shown, that he has ever paid or tendered to the defendant the residue of said debt, mentioned in the declaration.

2. That he has not alleged or shown, that he has paid or offered to pay to the defendant the sum of 100 dollars, mentioned in the declaration.

3. That he has not alleged or shown, that he ever requested the defendant to transfer to him the deed which the defendant held against J. Field's estate, or to assign and transfer to him the land mentioned in the...

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