41 Me. 565 | Me. | 1856
In this case, which is a petition for review, upon the ground of newly discovered evidence, the Judge presiding at Nisi Prius, “ being of opinion that the testimony presented by the petitioner, would not authorize a verdict in his favor, upon legal principles applicable to such cases, denied the
The ground, upon which the action is claimed to be maintainable, is that the plaintiff, on November 25th, 1852, was induced by the fraudulent representations of the defendant, to deliver to him the ox sued for in his writ, with $17 in money, in payment or exchange for a negotiable note against one John Dorr, dated June 2, 1851, for the sum of $51,21, and payable on demand and interest, which note the defendant then held, the same having been indorsed to him in blank by Alexander Eulton, the payee. The alleged fraud consisted in representations made by the defendant, at the time of the trade, that said Eulton, who appears to have been a man of property, was liable as indorser on said note, when the defendant well knew that said Eulton was not liable. The testimony given at the trial of the action, and the newly discovered evidence presented at the hearing upon this petition, were regarded as having a tendency to establish such fraud, and, for the purposes of our decision, the facts and fraud alleged are to be taken as proved. The plaintiff’s writ bears date, March 22, 1853. There was no evidence that the plaintiff had returned, or offered to surrender said note to the defendant, before the commencement of the suit; but it appears that, at the trial and before the verdict, the plaintiff did offer to surrender said note to the defendant.
The question submitted to our consideration is, whether the plaintiff, upon these facts, can maintain his suit. That a party to such a contract, who has parted with his property under it, when it was induced by the fraud of the other party, may, at his option, within a reasonable time after the discov
The case of Ayers & al. v. Hewett, 19 Maine, 281, referred to in the argument, differs from this in the particular above mentioned. There the payment for the property which the plaintiff had parted with under a contract influenced by the fraud of the purchaser, was wholly paid for in the vendee’s own notes; and the Court remark, upon the authority of Thurston v. Blanchard, 22 Pick. 18, that it may be, that the plaintiffs on another trial, by tendering the notes, may become entitled to a verdict in their favor; but they held in the same case, that a tender of the defendant’s own notes after verdict and before judgment was too late. These cases, however, are only exceptions to the general rule; and both of them are strong authorities to sustain it. That rule is too clearly established in the books to admit of doubt.
If the rule were otherwise, whether this action, being assumpsit upon an account annexed to the writ for the ox, could have been maintained, except upon a new count for money had and received, and upon proof that the defendant had sold or converted the ox into money or money’s worth, would deserve consideration. That the possession of property acquired by means of a sale, which has been rescinded on the ground of fraud in the vendee, is tortious, seems to be settled
