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Upon the pleadings, the questions were, whether certain written instruments purporting to be obligations
of the United States, known as "seventy-thirty" notes, numbered respectively 16074, 160436, 68573, 140133, were in fact sold by the defendants to the plaintiffs, and if so, were they forgeries? At the trial evidence was given by the plaintiffs upon these points, but the defendants controverted none of it, and we agree with the two courts by whom the facts in issue have been examined, that the testimony established the identity of the notes as those sold by the defendants, and it being unanswered, that there was no question upon which the opinion of the jury was necessary. The appellants, however, claim that the plaintiffs were negligent in not sooner detecting the forgery, and also in failing to return the notes. No authority is cited to the effect that one who sells as genuine, a forged note, can avoid his liability to refund because of delay by his vendee in detecting the forgery, or in giving notice of it. The duty of the vendee to make such examination, cannot be greater than was the duty of the vendor to make it, before he parted with the paper and received its price, nor will the mere lapse of time confirm his title to the purchase-money if the purchaser exercised reasonable diligence in giving notice after the forgery was ascertained. (Weisser v. Denison, 10 N.Y. 68; Bank of Commerce v. UnionBank, 3 id. 230; Kingston Bank v. Eltinge, 40 id. 391;Heiser v. Hatch, 86 id. 614, opinion by FOLGER, J.) This was done. The notes were purchased on the 24th of September, 1867, and sold by the plaintiffs on the same day — the note No. 160174 to Hatch, Foote Co., the others to Budge, Shiff Co. The first was redeemed at the treasury department, but afterwards found to be a forgery, and judgment recovered by the United States against Hatch, Foot Co. The others had again changed owners, and on the 20th of December, 1867, the plaintiffs were notified that the coupons which became due in that month, were rejected by the government on the same ground. On that day the plaintiffs gave this information to the defendants, and demanded back the money paid. The reply was that if the plaintiffs "had to pay for those notes, or brought them evidence that they were counterfeit, they would
pay." On the 30th of January, 1868, Budge, Shiff Co. sued these plaintiffs for money paid by them for the three notes and they gave notice to the defendants herein of that action, and requested them to defend. They did not do so. Budge, Shiff Co. obtained judgment in their suit March 26, 1878. After the verdict and before entry of judgment plaintiffs notified defendants of the decision against them. The plaintiffs were also sued for like cause by Hatch, Foote Co., to recover the money paid for note No. 160174, and the plaintiffs after the entry of said judgment paid them and also the holders of the other notes. This was sufficient. The defendants were afforded an immediate opportunity either to take back the paper, or establish its value. Failing to do either, they cannot be heard to say that it was unreasonable for their vendees, to await the result of a judicial determination as to the character of the paper, before taking it back, or that having done so, they are not now entitled to the money which that determination shows was obtained from them without consideration. As we concur with the General Term upon these propositions — decisive of the case — it is unnecessary to add more.
The judgment appealed from should be affirmed.
All concur except RAPALLO, J., absent.
Judgment affirmed.