Reports Of Cases In Law And Equity In The Supreme Court Of The State Of New York Volume 15
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. 1881 Excerpt: ...for the breach of the agreement. could not be re couped or set off or interposed as a defense in this action. Wail j' Parry, for the plaintiff. ( A. G. Paris, for the defendant. Hand, J. The ...
Paperback: 260 pages
Publisher: RareBooksClub.com (May 21, 2012)
Product Dimensions: 7.4 x 0.6 x 9.7 inches
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nswer does not state that the alleged agreement for the sale and purchase of the land was not in writing. The statute of frauds, at law, did not alter the form of declaring upon a contract. That is matter of evidence. (1 Saund. R. 211, n. 2. EM ug v. Vanderlyn, 4 John. 237. Stale of Lid. v. Woram, 6 Hill, S3. Gibbs v. Nash, 4 Barb. 449.) And the rule was the same in setting up an agreement in a bill of complaint. (Cozine v. Graham, 2 Paige, 177. Champlin v. Parish, 11 Id. 405.) It has been said, that if the defendant pleads in bar any agreement which is required by the statute to be in writing, he must state it to be so. (1 Saund. R. 211 a, n. I. Id. 277 a, n. 2.) For the defendant shall not take away the plaintiff's present action and not give him another, upon the agreement pleaded. (Case v. Barber, T. Raym. 450; & C. 1 Vin. 378. 1 Chit. PI. 270, 464. And see Rob. on St. of Frauds, 203, n. 88 a.) The reason assigned for this rule does not seem to be very satisfactory; and I am inclined to think, that where a recovery is attempted to be resisted by interposing an equitable counter claim in the nature of a cross-bill, the ordinary mode of stating the agreement in a bill of complaint in chancery, is sufficient. But admitting the agreement between the parties, as set forth Dewey v. Hoag. in the answer, to have been in writing, and that the plaintiff furnished the money to bid off the property; as there was an express agreement for purchase and sale, I think there was no resulting trust, even if a writing would take the transaction out of the statute in relation to re...