Rogers v. Van Hoesen

12 Johns. 221

Opinion

Per Curiam.

_ I he judgment must be reversed. It appearing from the examination of the plaintiffs’ witnesses, that the contract upon which they relied was in writing, they were bound to show it: or, if in the possession of the opposite party, notice to produce it should have been given, before the paroi evidence was admitted. It is fairly to be inferred from the return that this objection was taken, though it is not distinctly stated in terms.

But there is another and fatal objection to the recovery upon the contract as proved. The fish were to be delivered to the defendants, at the Fly, or at the dock at Catskill. The place of delivery being at the election of the plaintiffs, they were bound to give notice to the defendants of such place, and that the fish were ready to be delivered ; and there is no pretence that, this was done. The fish were, therefore, lost through the negligence of the plaintiffs, and it would be manifestly unjust to throw this loss upon the defendants.

Judgment reversed,