60 N.H. 371 | N.H. | 1880
The finding of the referee establishes the fact that the plaintiff parted with his hay, and took the defendant's note for it, relying upon the representations of the defendant as to his ability and means to pay it, which were false, and known by the defendant to be false, and which were made to induce the plaintiff to part with his property.
It is a principle of natural justice, recognized in the law, that fraud or deceit, accompanied with damage, is a good cause of action. Powers v. Hale,
But the defendant says that the plaintiff by receiving part payment of the note affirmed the sale, and cannot now maintain this action. This suit is not brought for the recovery of the goods. The plaintiff asks to recover the damages to which he has been subjected by the defendant's fraud and deceit. The part payment of the note did not condone the fraud; it only mitigated the damages to the extent of the payment. But if part payment might under any circumstances have that effect, it could not here, for the plaintiff at the time stated that he did not waive his right to damages for the fraud.
It is suggested that the plaintiff ought not to have judgment, because he may have parted with the note, and thus received full value for his property. The case does not show how this fact is. If the plaintiff has, in fact, received the full value of his property in this way, he cannot maintain this action; but if, on the contrary, the note is unpaid, and the plaintiff will bring it into court and surrender it to the defendant, or file it with the clerk to be cancelled, he may have judgment for the amount found by the referee. Hubbs v. Hobbs,
Case discharged.
All concurred. *373
