33 N.J.L. 81 | N.J. | 1868
The note which forms the subject of this controversy, was put into writing and was-
But a recovery beyond this measure was claimed on the argument by the counsel of the plaintiff, on the ground that the note in question was purchased in good faith, and without any intention, on the part of the purchaser, of making a
Nor do I see any difficulty in harmonizing this theory of the case with that branch of the law which denounces a penalty against the taker of usury. According to the view taken, a man does not commit an act of usury who, under a misapprehension induced by fraud, gives his money in exchange for a note in the hands of the drawer of it, and which
But there is a third aspect of this case.
The proof on the part of the plaintiff was that the note in suit was taken by an innocent purchaser, upon the assurance of the agent of the defendants, who was employed to sell the instrument, that it had been put into the market for value and in the legitimate course of business. The defendants did not attempt to overcome this evidence as to the statement of their agent, but their offer was to show it such statement was false, and that, in point of truth, the note had no legal existence until it was purchased by Mr. Kirkland, to whose position the plaintiff has succeeded. Hence arises the third legal problem just referred to, the plaintiff insisting that as Mr. Kirkland acted honestly, on the representations as to the commercial character which the
But although I have come to the conclusion that the defendants cannot falsify their own representations in order to defeat this action, yet I still think such evidence is admis
Applying, then, these conclusions to the case before the court, the result is, that the plaintiff must elect on which ground to stand; that is, he must treat the transaction as usurious, out and out, and rest his right to recover on the laws of this state; or he can insist on the estoppel, and in that event claim judgment for the sum actually paid by Mr. Kirkland for the paper in question. If the plaintiff accept this latter branch of the alternative, he will be entitled to recover, also, interest and costs. Let him move for judgment in such form as he may be advised.
Cited in Holcomb v. Wyckoff, 6 Vr. 39; Freese ads. Brownell, 6 Vr. 287.