Potter v. Hopkins

25 Wend. 416

• Court: New York Supreme Court
• Decided: May 15, 1841
• Status: Published

Opinion

. By the Court,

Nelson, C. J.

The instrument in question does not purport on its face to be a complete arrangement between the parties; and if it may rest in parol, there can be no objection to the suppletory evidence given in the case. The authorities on this point are well collected, in Cowen & Hill’s Notes, p. 1471-3. It was obviously given as an acknowledgment of part execution of a contract, referring to some of its terms, which I agree are binding as far as they go.

The variance between the declaration and proof, in respect to the quantity of wheat, would be fatal upon the English *authori- [ *420 ] ties, 1 Saund. Pl. § Ev. 119; but was properly disregarded, according to the more liberal manner of viewing misdescriptions of the kind in this court. The court overlook these misdescriptions in pleading, unless they tend to mislead the adverse party. Ho such consequence can be urged here.

The measure of damages, in respect to the quantity of wheat paid for by the advance of the $500, was in the main unobjectionable, as laid down at the circuit, 7 Cow. 681; and from the verdict it is apparent no more has been allowed than in justice belongs to the plaintiff.

Hew trial denied. ■