Standish v. Chandler

23 Wend. 511

• Court: New York Supreme Court
• Decided: May 15, 1840
• Status: Published

Opinion

Bronson, J.

By the Court, If George Chandler had been plaintiff, and was suing on the note which he offered to set off, it would have been sufficient, in declaring, to allege that Standish made his promissory note and thereby promised, &c., without taking any notice of the fact that there was another maker and that the promise was joint and several. The legal effect of the contract was, a several promise by each maker, as well as a joint promise by both. The note was set out according to its legal effect in the defendant’s bill of particulars, and I am unable to discover any variance whatever. It was described with great particularity. The place where made, date, amount, name of payee, negotiability, time of payment, &c., were all set forth with entire accuracy. If the plaintiff thought it insufficient, he should have applied for a more particular account of the set off, or a literal copy of the note which the defendant proposed to give in evidence.

I cannot suppose that there was any design to mislead the plaintiff, or that he was surprised by the offer to give the note in evidence. There was no suggestion that he alone had ever given a note answering to the description in the bill of particulars, and it is too much to presume such a fact for the purpose of defeating a set off which is apparently legal.

New trial granted.