9 N.H. 365 | Superior Court of New Hampshire | 1838
It is contended, in this case, that the equity is equal between the parties—that there must be a loss upon the bills which were received by the plaintiff, and that, both parties being equally innocent, the law should not interfere. It is not quite clear that both parties were equally innocent in this transaction. The case finds that it did not distinctly appear that the failure of the bank was known to the defendant, but it did appear that it was unknown to the plaintiff. A suspicion, however, that the defendant had knowledge of the failure, at the time he made the purchase, can have no effect upon the present decision, as no question of that kind has been submitted to the jury.
When, therefore, the plaintiff received the bills, he received them, and the defendant paid them, as money. It was in that way only that the defendant could perform what he had undertaken to do, which was, to pay a sum of money. The bills represented money—were doing the office of money—and should have been of the value of money at the place where they purported to be redeemable, and convertible into money. The plaintiff was as much entitled to receive good bills, if he consented to take bills, as he would have been to have received good coin, in case the payment had been made with specie : and it is not doubted that in such case, if the payment had been made in counterfeit coin, the plaintiff would have been entitled to recover. The same is true of counterfeit bills, when they have been passed inpayment. 6 Mass. Hep. 182. Young vs. Adams; 2 Johns. Rep. 455, Maride vs. Hatfield; 4 N. H. Rep. 492, Grafton Bank vs. Hunt.
The case of a payment in bills of a broken bank cannot be distinguished, in principle, from that of a payment in
It can make no difference whether the party making the payment knew, at the time, that the bank had failed. That is of as little consequence as it is whether he knew that the pieces of coin or bills which he paid were counterfeit. Having undertaken to pay a sum of money, the question is, whether he has performed his obligation.
It is not sufficient that the bills, in this case, might have been current at the place of payment, when the payment was attempted to be made. They should have been current, or convertible into specie, at the place where they purported to be redeemable. When the defendant paid them as money, he took this risk upon himself. If they were not so, they were not what they purported to be, and what they were taken for.
There is no equity in the case which should lead to a different result. When the bank failed the loss fell upon the defendant, as the holder of the bills, if be held them at that time. If he had not received information of his loss, that is of no consequence. The bills were no longer redeemed on demand, and a loss, greater or less, had accrued. There
If the bills had been convertible into money, at the bank, when the plaintiff received them, they would have been what they purported to be, and the risk of a subsequent failure, while they were in his possession, would have been with the plaintiff.
The plaintiff having offered to return the bills in a reasonable time, is entitled to treat the case as if they had not been received, and to recover the balance due on the sale of the oxen. Judgment for the plaintiff.