Barnes v. Bailey

2 Ala. 749 | Ala. | 1841

GOLDTHWAITE, J.

— This ease is' somewhat complex, from the peculiar condition of the parties, with respect to the principle involved. The defendant, by his plea, insists that the contract on which he is sued, has been discharged by payment ; and. he shows in evidence a new contract, by which the plaintiff agreed to receive a certain bill and note in discharge of the debt. The effect of this new contract is sought to be destroyed on the ground of fraud. What the fraud consisted in, is not disclosed in the bill of exceptions.^

It is clear, we think, oil principle, as well as authority, that if money had been paid for the bill and note, it could not be recovered back without showing the worthlessness of the paper received ; or unless an offer was made to return it.

In the case of Kimball v. Cunningham, 4 Mass. 502, the rule is laid down, that a purchaser shall not compel even a fraudulent seller to resort to his action to recover the thing sold.

This rule is also maintained in a great number of cases which have been cited by the counsel for the plaintiff in error, and amongst them are several decisions of our own Court.

In the case of Pope & Hickman v. Nance & Co., Minor 290, this rule was held to preclude one from resorting to his action for the original consideration of a contract, which had been discharged by giving a forged note in payment, unless he shewed a return of the note; or uuless he had exhausted all the liabilities on it. Perhaps this case goes too far in asserting, that it was necessary to return, or offer a return, of a worthless instrument; but the decision turns on the fact, that the note was not so to be considered, as it was endorsed by individuals who were not shown to be insolvent. As the record now stands in this case, the plaintiffs have not only a judgment against the defendant on the original contract, but they also have the possession of the note and bill rvlrich were given in its discharge. They may, therefore, compel the defendant to resort to his action for the recovery of that which is his own property.

We are satisfied that the present case is not governed by any exception to the general rule. It is not shown that the note and bill could not be returned in consequence of the absence of the defendant; nor is any other cause shown which will excuse the offer to rescind the latter contract, and discharge the plaintiffs from the necessity of placing the defendant in statu quo.

The defence is one which occurred after the institution of the suit; therefore, it seems that an offer to return the note and bill at the trial, would have the effect to rescind the latter contract, if it was also vitiated by fraud; but %ve do not wish to be considered as deciding this question, because it is not now before us.

Let the judgment be reversed, and the case remanded.