Judah v. Kemp

2 Johns. Cas. 411

• Court: New York Supreme Court
• Decided: October 15, 1801
• Status: Published

Opinion

Per Curiam.

When the defendant refused to deliver the goods on the ground that his owners had ordered him not to deliver them, a tender of the freight was not necessary. The plaintiffs, however, did tender a sum of money for freight, though the amount does not appear ; but as the defendant did not make any demand of freight, nor object to the tender, it was sufficient. The goods were not detained by the defendant on the ground of his lien, but for a different reason, which amounted to a waiver of the tender.(

a) His refusal, therefore, is evidence of a conversion, and the plaintiffs are entitled to judgment.(b)

Judgment for the plaintiffs.

(а) See note to Coit v. Houston, infra, vol. 3, p. 243.

(b) The books are so full of cases confirmatory of this principle, that no references are needed. See, however, Archbold’s Nisi Prius, 457, 458. 3 Stephens’ N. P. 2682, et seq. 3 Harrison’s Dig. Am. ed. 1846, p. 6405, et seq. 5 id. 1702, et seq. 4 New York Digest (Clerke’s) ed. 1845, p. 1159. Minot’s Dig. 084, et seq. 3 United States Digest, 587, et seq. 2 Supplement to United States Dig. 878, et seq.