Smith v. Burnham

9 Johns. 306

• Court: New York Supreme Court
• Decided: October 15, 1812
• Status: Published

Opinion

Per Curiam.

The defendant admitted, by his covenant, that Ms name was annexed to the schedule, with a quantity of timber subjoined. He is, therefore, estopped to deny that Delano and Burnam did not include his name. Burnam must be considered to be the same name as Burnham, and he cannot set up a misnomer in avoidance of his covenant. The words "Delano and" may he rejected as surplusage; and if it be a distinct name, yet, as the defendant coupled his name with another, he is still responsible for the sum annexed. The omission to add his Christian name cannot help Mm. A mistake of the surname in a deed will not vitiate ; and the schedule being referred to in the covenant, it is to be taken as part of the covenant, for the purpose of estopping the defendant from denying the name which he has admitted,- merely because there may be a misnomer, or because the Christian name was emitted. The nonsuit ought, therefore, to be set aside, and a new trial awarded, with costs to abide the event of the suit.

Motion granted.