Close v. Miller

Decided January 15, 1813

New York Supreme Court · decided 1813-01-15

THIS was an action of assumpsit, on a promissory note, dated the 14th May, 1810, by which the defendant promised to pay the plaintiff, on or before the 1st October next, 100 dollars, The defendant pleaded that on the 14th May, 1810, at, &c. in consideration that the plaintiff had, then and there, promised and agreed to sell and deliver to him, a certain sloop or vessel, &c. which the plaintiff, then and there, falsely and fraudulently declared an(j affirmed to be the sole…

Decided 1813-01-15

Per Curiam.

¶1The plea discloses a sufficient consideration for the note, by stating that it was given in consideration of a promise by the plaintiff to sell, See. This was a case of mutual promises, where the one is a consideration for the other, and a performance of the plaintiff’s promise need not be averred and shown, to enti- / tie him to recover. The cases of Martindale v. Fisher, (1 Wils. 88. and of Nichols v. Rainbred, (Hob. 88.) are in point. If the plaintiff has failed in the performance of his promise, the defendant has a remedy by a suit upon that promise; but it would be altogether unprecedented and unfit to enter, in this suit, into .an examination and trial of the plaintiff’s default, as to his undertaking, so long as the performance of one promise was not made a condition of the performance of the other. This is not a case of a set-off.

¶2Judgment for the plaintiff.