Waldron vs. Stevens, 12 Wend. 100

By the Court, Savage, Ch, J. The question is, whether a transaction, such as is exhibited in this case, is to receive the sanction of law. Here was a contract executory on both sides ; one agrees to deliver brick, the other to pay. Suppose Knapp had notoriously become insolvent, and had demanded the delivery of the brick, would any court compel the delivery when the consideration of the agreement, on the part of the defendant, had failed? Waldron is certainly in no better situation in point of law, and in equity not so good, for he concealed the truth.

It is said that the defendant was not justified in detaining the brick, on the ground of stoppage in transitu, for the right to such stoppage depends upon the insolvency of the purchaser intermediate the sale and delivery. The fact of Knapp’s absconding, raises a strong presumption of his insolvency ; and I am inclined to think the defendant justified on that ground. But I put it on the ground of fraud in the plaintiff; he shows no interest in the receipt, nor that he had given value for it, which, under the circumstances he certainly should have done.

The case now presented shows a promise to deliver, obtained by fjaud and without consideration. New trial granted.