Potter v. Bacon

2 Wend. 583

• Court: New York Supreme Court
• Decided: May 15, 1829
• Status: Published

Opinion

By the Court, Savage, Ch. J.

It is objected in this case that the breach is larger than the covenant, and therefore bad. Although there is no covenant in so many words to pay $250 at Troup’s office, yet I conceive such is the sense and substance of the agreement. The defendant had obligated himself by bond, which is recited, to pay $250 towards obtaining a piece of land for plaintiff’s wife and children, and plaintiff was to locate the land. The plaintiff did so, and paid $25 upon it. This the defendant agrees to refund. He was to go to the office of Mr. Troup, and take an article for 25 acres, and when he produced a deed, then he was to have his bond for $250. If, after paying for the land, Troup refused to give a deed, then provision is made for that event; so that the plain sense of the agreement seems to be, that the defendant shall pay at the office and to the plaintiff for the 25 acres of land designated, in satisfaction of his bond. It seems to me, therefore, that the breach is according to the substance of the covenant, though not according to the letter. This is enough, and the plaintiff is entitled to judgment on the demurrer and on the verdict.