Scott v. Lieber & Geortner

2 Wend. 479

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

Opinion

By the Court, Marcy, J.

It is a general rule in declaring, that contracts must be set forth in the words in which they were made, or according to their legal effect; (1 Chitty's Pl. 299 ;) but where there are distinct parts of an agreement, in declaring for a breach of a particular part, it is not necessary to set forth other parts which do not qualify or vary the part on which the action is brought. (6 East, 567.) As the breach of the agreement declared on by the plaintiff in this case had no relation whatever to the supply of water, it would have been entirely useless to have set forth that clause in the lease or instrument which secured to the defendants a preference in the use of the water in case there was not a sufficiency for both parties. The case of Crawford v. Morrell, (8 Johns. R. 253,) cited to support the position taken for the defendants, is clearly distinguishable from that now before the court. The contract declared on in that case, was to pay one half of the value of land taken for a highway, and the contract proved was a promise to pay for the whole of it. The plaintiff in the case now under consideration set forth all that part of the contract for the violation of which he had prosecuted the defendants; and what he did set forth, is set forth according to its true legal effect.

It is alleged that the judge erred in that part of his charge that related to the small room. It is true that it was not explicitly stated, that when it should he finished and furnished, it should be for the use of the plaintiff; but no one, on reading the agreement, can doubt but that such was the meaning of the parties. Why, in a contract with the plaintiff, do the defendants covenant to finish a room to be taken from that occupied by the carding machine let to the plaintiff, if it was not for the benefit of the plaintiff 1 The judge’s construction of this part of the agreement appears to be sound ; and if it was intended, when finished, for the use of the plaintiff, the judge was correct in instructing the jury to allow the plaintiff damages on account of it, for the period of time he was deprived of its use.

Motion for new trial denied.