| N.H. | Jan 15, 1858
We see nothing in the evidence reported from which it would have been competent for the jury to find that the goods were obtained by fraud,- and there is no conflict in the evidence as to the contract on which the machinery was delivered. The bargain was for a sale on credit, and the defendant was to give his note, payable in six months. The machinery was afterwards delivered without any evidence of a new bargain, without taking the note, and without any offer or demand of it.
It is contended on the part of the plaintiff, that inasmuch as the agreement was for credit on the defendant’s note, and the note was not given, the stipulation for credit must be considered as waived, and the defendant be held liable for the agreed price, on demand ; whereas the defendant’s position is, that the general undertaking to give credit for six months remains in force, and that the plaintiff, by delivering the goods without requiring the note, has waived his right to insist on it as a condition of the sale, and that the rest of the bargain stands, including the stipulation for credit. On the authorities we think the defendant’s position is correct. Allen v. Ford, 19 Pick. 217; Lispen v. Main, 6 Wend. 77" court="None" date_filed="1830-12-15" href="https://app.midpage.ai/document/lupin-v-marie-6118970?utm_source=webapp" opinion_id="6118970">6 Wend. 77 ; Yale v. Coddington, 21 Wend. 175" court="N.Y. Sup. Ct." date_filed="1839-05-15" href="https://app.midpage.ai/document/yale-v-coddington-5515295?utm_source=webapp" opinion_id="5515295">21 Wend. 175; Scott
Where goods are agreed to be sold on credit, and the buyer’s note taken for the price, if the goods are afterwards delivered without any new bargain, and without the note or any demand for it, we are of opinion that the stipulation for the note must be considered as waived ; that the agreement for credit remains in force, and that of course no action can be maintained for the price of the goods, till the agreed term of credit has expired.
Where a sale of goods on credit is obtained by fraud of the buyer, the seller may rescind the contract of sale and reclaim the goods immediately. But whether he can sue for the price until the agreed term of credit has expired, is a point upon which there appears to be some conflict of authority. Bank v. Gore, 15 Mass. 79 ; Wilson v. Force, 6 Johns. 110; Downing v. Mathews, 31 Maine 90 ; Jenks v. Mathews, 31 Maine 320 ; Corlies v. Gardner, 2 Hall 345" court="None" date_filed="1829-10-15" href="https://app.midpage.ai/document/corlies-v-gardner-9298081?utm_source=webapp" opinion_id="9298081">2 Hall 345 ; Hoskins v. Duperoy, 9 East 501; Ferguson v. Carrington, 9 B. & C. 59 ; Winchell v. Noyes, 23 Vt. 303" court="Vt." date_filed="1851-02-15" href="https://app.midpage.ai/document/winchell-v-noyes-6574524?utm_source=webapp" opinion_id="6574524">23 Vt. 303 ; Galloway v. Holmes, 1 Doug. (Mich.) 330.
Judgment on the nonsuit.