Allen v. Clark

49 Vt. 390 | Vt. | 1877

The opinion of the court was delivered by

Powers, J.

The defendant delivered the note in question in its present form to the plaintiff in part payment of the purchase-money of a farm purchased of the plaintiff. The case shows-that the indorsements on the note were made by the defendant without the knowledge or consent of the maker of the note, and this fact was concealed from the plaintiff. It turns out that the indorsements are fictitious, and represent no payment made upon the note, and the note soon after its receipt' by the plaintiff was barred by the Statute of Limitations.

The transaction discloses a fraud on the part of the defendant. Before the Statute of Limitations had barred the plaintiff’s right of recovery, the defendant dissuaded the plaintiff from collecting by sundry excuses and devices, and now has the courage to urge that the plaintiff has been guilty of laches in this behalf. The delivery of the note to the plaintiff in payment of the defendant’s debt, was, of itself, a warranty that the paper was in truth just what it purported to be. It was a warranty that the indorsements were genuine in form and in substance, and the plaintiff had the right to assume that the paper would be clear of this defence for six years from the date of the last indorsement.

The judgment of the County Court was morally and legally correct, and is affirmed.