83 N.Y. 14, Marie v. Garrison

Citation:83 N.Y. 14
Party Name:PETER MARIE et al., Appellants, v. CORNELIUS K. GARRISON, impleaded, etc., Respondent.
Case Date:November 30, 1880
Court:New York Court of Appeals

Page 14

83 N.Y. 14

PETER MARIE et al., Appellants,

v.

CORNELIUS K. GARRISON, impleaded, etc., Respondent.

New York Court of Appeal

November 30, 1880

Argued October 12, 1880.

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COUNSEL

Wm. A. Beach for appellants. A complaint is not to be deemed as uniting several causes of action because it sets forth several grounds relative to the same transaction, on either of which the defendant would be liable. (Durant v. Gardner, 10 Abb. Pr. 445; Adams v. Holley, 12 How. Pr. 329; Sheldon v. Lake, 9 Abb. Pr. [N. S.] 306; Thompson v. Minford, 11 How. Pr. 273; Buckner v. Astor Mut. Ins. Co., 1 E. D. Smith, 553.) A demurrer on the ground of insufficiency can only be sustained when the complaint presents defects so substantial and fatal as to authorize the court to say, taking all the facts to be admitted, that they furnish no cause of action whatever. (Richards v. Edick, 12 Barb. 260; Graham v. Camman, 5 Duer, 697; Prindle v. Carruthers, 15 N.Y. 425; The People v. Ryder, 12 Id. 436.) The complaint sets forth a valid contract between the parties, and a breach thereof by the defendant, Garrison. (2 Blackstone's Com's, 446; Sturges v. Crowninshield, 4 Wheat. 197; 1 Parsons on Contracts, p. 6; Van Alstyne v. Van Slyck, 10 Barb. 383; Sands v. Crooke, 46 N.Y. 564; Dutch v. Mead, 4 J. & S. 429, affirmed 59 N.Y. 628; Worrall v. Munn, 5 Id. 229; Justice v. Long, 42 Id. 493; Dair v. U.S. 6 Wall. 4.) The promise of defendant was founded on sufficient consideration. (Palmer v. North, 35 Barb. 282; White v. Hoyt, 73 N.Y. 505; Donner v. Church, 44 Id. 647; Wehrum v. Kuhn,

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2 J. and S. 336, affirmed 61 N.Y. 623; Coster v. Brush, 25 Wend. 628; Union Bk. v. Geary, 5 Peters, 99; Sykes v. Chadwick, 18 Wall. 141; Gratz v. Cohn, 11 How. 1; French v. Shoemaker, 14 Wall. 314; Phillpot v. Grumerger, Id. 576; Bohn v. Goldstein, 53 N.Y. 634; Ledrum v. Clarke, 6 Weekly Dig. 438; White v. Baxter, 71 N.Y. 254.)Where a defendant has actually received the consideration of an agreement, it is no answer to an action against him for a breach of his covenants in the same to say that the agreement did not bind the plaintiff to perform the promises on his part therein contained, if in fact it appears that the promises in question have been performed in good faith and without prejudice to the defendant. (Addison on Contracts [6th ed.], 15; Morton v. Burn, 7 Ad. & El. 19; Storm v. U. S., 94 U.S. R. [ 4th ed.] 15.) The surrender of the written contract to defendant was abundant consideration for the second parol promise. (Mason v. Decker, 72 N.Y. 595; Munroe v. Perkins, 9 Peck. 298.) The contract related to an incorporeal thing, having no apparent palpable form. The statute of frauds does not apply. (Coleman v. Eyre, 45 N.Y. 38; Parsons v. Loucks, 48 Id. 17; Smith v. N.Y. C. R. R., 4 Alb. Ct. of App. Dec. 262; Cooke v. Millard, 65 N.Y. 358; Somerby v. Bunten, 118 Mass. 279; Williams v. Morris, 95 U.S. Rep. [ 5 Otto] 444; Chitty Contr., 10th ed. 66, 278; 2 Story Eq. Juris., § 761; Swain v. Seamans, 9 Wall. 254.) If the rescission of the first agreement was ineffectual, it must remain a valid and subsisting obligation. (Pope v. Nance, 1 Stew. [ Ala.] 354.) The surrender of the certificates of stock after the property which they represented was gone, was a mere matter of form, and was not necessarily called for under the contract as alleged. (Highland T. Co. v. McKean, 11 Johns. 98; Sergeant Williams' 2d Rule in note to Pordage v. Cole, 1 Wm. Saunders, 310; Underhill v. S. & W. R. R. Co., 20 Barb. 455; Northrup v. Northrup, 6 Cow. 296; Morris v. Silter, 1 Denio, 59; Paine v. Brown, 37 N.Y. 228.) It is a question of intention whether the several parts of a contract made at one and the same time are to be taken distributively and are independent, or whether entire performance

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by one party is a condition precedent to his right of recovery against the other party in respect to a portion of the contract which he has fully performed. (Tipton v. Feitner, 20 N.Y. 430; Bennett v. Exr. of Pixley, 7 Johns. 249; Tompkins v. Elliott, 5 Wend. 496.)The breach of the contract by Garrison relieved the other party from the useless formality of tendering performance even of a condition precedent, and gives immediate right of action. (Horward v. Daly, 61 N.Y. 370; Cort v. Ambergate R. R. Co., 6 Eng. L. & Eq. 230; Hockster v. Delavan, 20 Id. 157; Frost v. Knight, 7 Law Rep. 111 [Exc. Ch.]; Burtis v. Thompson, 42 N.Y. 246; Franchot v. Leach, 5 Cow. 506; Trever v. Halsted, 23 Wend. 66; Cornwell v. Haight, 21 N.Y. 462; Blewett v. Baker, 58 Id. 611; Shaw v. Republic Life Ins. Co., 69 Id. 286; Bunge v. Koop, 48 Id. 225; Crary v. Smith, 2 Id. 60.) Tender by plaintiffs of this stock was not necessary. (Hay v. Hay, 6 Weekly Dig. 158; Nichols v. Michael, 23 N.Y. 264; White v. Talmage, 3 J. & S. 223; Cornwell v. Haight, 21 N.Y. 462; Grugg v. Von Phul, 1 Wall. 275.) He who prevents a thing being done shall not avail himself of the non-performance he has occasioned. (Homer v. Guardian Mut. Life Ins. Co., 67 N.Y. 478; Jenks v. Robertson, 58 Id. 621; Gallagher v. Nichols, 60 Id. 438; Risley v. Smith, 64 Id., 516; Hawley v. Keeler, 53 Id. 114.) There is nothing illegal or prohibited in the contract itself. (Marsh v. Russell, 66 N.Y. 288; Philpen v. Stickney, 3 Metc. 384; Wicker v. Hoppock, 6 Wall. 94.) The question of an illegal consideration cannot be raised on a demurrer; it must be pleaded. (Tyler v. Rand, 7 How. U.S. 583; Fellowes v. Taylor, 7 Tenn. R. 475.) There was no misjoinder of parties plaintiff. (Loomis v. Brown, 16 Barb. 331; 1 Parsons on Contracts, 11; Yorks v. Peck, 14 Barb. 644.) If the demurrer is sustained and the judgment affirmed, plaintiffs should be allowed to amend their complaint under section 497 of the Code of Civil Procedure. (Miller v. Mayor, 76 N.Y. 151.)

Henry L. Clinton and George F. Comstock for respondents. To sue as trustees of express trusts under the Code, it was necessary

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for plaintiffs to have named themselves as trustees in the title of the suit, and to have averred that they were such trustees, and to have set forth the nature and terms of their authority. (Smith v. Livinus, 4 Seld. 472, 474; Freeman v. Fulton Fire Ins. Co., 14 Abb. Pr. 398; Western R. R. Co. v. Nolan, 48 N.Y. 513; Root v. Price, 22 How. Pr. 372-4; Selden v. Hoyt, 11 How. Pr. 11-14; Van Santford's Pl...

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187 practice notes
  • 82 P. 110 (Idaho 1905), Jones v. Vane
    • United States
    • Idaho Supreme Court of Idaho
    • 15 Agosto 1905
    ...will lie are named in the statute, and none other can be reached by it. (Bliss on Code Pleading, 3d ed., sec. 404; Marie v. Garrison, 83 N.Y. 14; Pomeroy's Code Remedies, 3d ed., sec. 515, citing many authorities.) The order striking out the complaint in intervention was without authority o......
  • 100 N.E. 675 (Ind. 1913), 22,328, The Domestic Block Coal Company v. Dearmey
    • United States
    • Indiana Supreme Court of Indiana
    • 22 Enero 1913
    ...what can be implied upon the statements therein by reasonable and fair intendment." To the same effect, see, Marie v. Garrison (1880), 83 N.Y. 14; Morse v. Gilman (1863), 16 Wis 531; 31 Cyc. 48, 73, 79, 80; White v. White (1907), 132 Wis. 121, 111 N.W. 1116. There is no direct averment......
  • 103 N.Y. 58, Munson v. Syracuse, G. & C. Ry. Co.
    • United States
    • New York New York Court of Appeals
    • 5 Octubre 1886
    ...not prohibited by law. ( Marsh v. Russell, 66 N.Y. 288; Phippen v. Stickney, 3 Metc. 384; Wicker v. Hoppock, 6 Wall. 94; Marie v. Garrison, 83 N.Y. 14, 29, 30.)Where the contract does not so appear upon its face to be against public policy it must be alleged and proved that it was. ( Harris......
  • 147 N.Y. 603, National Bank of Auburn v. Dillingham
    • United States
    • New York New York Court of Appeals
    • 10 Diciembre 1895
    ...U.S. 302; Zebley v. F. L. & T. Co., 139 N.Y. 461; Kain v. Larkin, 141 N.Y. 144; Sanders v. Soutter, 126 N.Y. 193; Marie v. Garrison, 83 N.Y. 14, 23; Milliken v. W. U. T. Co., 110 N.Y. 403; A. Co. v. Bennett, 73 Hun, 81; W. A. Co. v. Barlow, 68 N.Y. 34; Whitney v. Cammann, 137 N.Y. 342; ......
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187 cases
  • 82 P. 110 (Idaho 1905), Jones v. Vane
    • United States
    • Idaho Supreme Court of Idaho
    • 15 Agosto 1905
    ...will lie are named in the statute, and none other can be reached by it. (Bliss on Code Pleading, 3d ed., sec. 404; Marie v. Garrison, 83 N.Y. 14; Pomeroy's Code Remedies, 3d ed., sec. 515, citing many authorities.) The order striking out the complaint in intervention was without authority o......
  • 100 N.E. 675 (Ind. 1913), 22,328, The Domestic Block Coal Company v. Dearmey
    • United States
    • Indiana Supreme Court of Indiana
    • 22 Enero 1913
    ...what can be implied upon the statements therein by reasonable and fair intendment." To the same effect, see, Marie v. Garrison (1880), 83 N.Y. 14; Morse v. Gilman (1863), 16 Wis 531; 31 Cyc. 48, 73, 79, 80; White v. White (1907), 132 Wis. 121, 111 N.W. 1116. There is no direct averment......
  • 103 N.Y. 58, Munson v. Syracuse, G. & C. Ry. Co.
    • United States
    • New York New York Court of Appeals
    • 5 Octubre 1886
    ...not prohibited by law. ( Marsh v. Russell, 66 N.Y. 288; Phippen v. Stickney, 3 Metc. 384; Wicker v. Hoppock, 6 Wall. 94; Marie v. Garrison, 83 N.Y. 14, 29, 30.)Where the contract does not so appear upon its face to be against public policy it must be alleged and proved that it was. ( Harris......
  • 147 N.Y. 603, National Bank of Auburn v. Dillingham
    • United States
    • New York New York Court of Appeals
    • 10 Diciembre 1895
    ...U.S. 302; Zebley v. F. L. & T. Co., 139 N.Y. 461; Kain v. Larkin, 141 N.Y. 144; Sanders v. Soutter, 126 N.Y. 193; Marie v. Garrison, 83 N.Y. 14, 23; Milliken v. W. U. T. Co., 110 N.Y. 403; A. Co. v. Bennett, 73 Hun, 81; W. A. Co. v. Barlow, 68 N.Y. 34; Whitney v. Cammann, 137 N.Y. 342; ......
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