(DOWNLOAD) "Washington and Turner v. Ogden" by United States Supreme Court " Book PDF Kindle ePub Free
eBook details
- Title: Washington and Turner v. Ogden
- Author : United States Supreme Court
- Release Date : January 01, 1861
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 61 KB
Description
Mr. Arrington, of Illinois, for plaintiffs in error. The declaration is fatally defective. It alleges no title in Ogden, nor any right to convey, but merely his readiness to deliver a deed. The contract was an agreement to sell land, and that implies transmutation of property from one man to another. 2 Blackstone 446; Williamson vs. Berry, (8 Howard, 544;) Thomas vs. Van Ness, (4 Wendell, 549.) A deed might be executed without conveying and title. The declaration should have averred title in Ogden and a readiness to execute such a deed as would be effectual to transfer that title. 1 Chit. Pl., 327; Thomas vs. Van Ness, (4 Wendell, 549;) Glover vs. Tuck, (24 Wendell, 153;) Tyler vs. Young, (2 Scam., 146;) Burn vs. McNulty, (2 Gilman, 128.) You cannot compel a vendee to take a lawsuit instead of the land. Bank of Columbia vs. Hagner, (1 Peters, 455.) Performance must always be alleged according to the intent of the contract. It is not sufficient to follow merely the words. 1 Chit. Pl., 325. The declaration does not allege notice to the defendants of the surrender and cancellation of the Wright contract, and this being a matter peculiarly within the knowledge of the vendor, should have been stated. 1 Chit. Pl., 328; Com. Dig., C. 73, 74; 2 Pars. Cont., 182. These defects in the declaration are not aided by the verdict. 1 Chit. Pl., 673; Dodson vs. Campbell, (1 Sumner, 319;) Addington vs. Allen, (11 Wendell, 375.) The court below assumed that a bare declaration by the plaintiff that Wright's contract was forfeited would be legally equivalent to a surrender and cancellation of it. This was clearly erroneous, and misled the jury. Caldwell vs. United States, (8 Howard, 366;) Tucker vs. Moreland, (10 Peters, 58;) United States vs. Beitling, (20 Howard, 254.) The court said that if it was the agreement and understanding of all parties in interest that the contract was at an end, then it might be regarded as substantially surrendered and cancelled. This statement tended to mislead the jury, whether as a rule of law it was true or false, for there was no evidence of any such understanding or agreement.
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