1 Doug. 507 | Mich. | 1844
delivered the opinion of the Court.
[After some remarks upon the loose and inartificial manner in which the bill of exceptions states what facts the plaintiff offered to prove, and the consequent difficulty in ascertaining therefrom with certainty, what these facts were, the opinion proceeds :]
The facts offered to be proved by the plaintiff on the trial below, were probably as follows: That, some time in the fall of the year 1838, the plaintiff' sold to the defendants domestic cloths and flannels, at a stipulated price, and agreed to receive in payment the securities above mentioned, with the understanding that certain representations made by the defendants, that the securities were good, and well secured on good property, should prove correct.
Upon the argument of the cause it was urged that the testimony was inadmissible, on the ground that, if the representations respecting the character of the securities were false, it was the duty of the plaintiff to rescind the contract, which was entire, by returning to the defendants all the securities received, and then resort to his appropriate remedy to recover the goods in specie, or their value; but that the plaintiff having retained the bond and mortgage of Prindle, upon which a partial payment had been made, and which was esteemed good and available, he could not, by an offer to return the note and mortgage executed by Platt, recover the difference between the price agreed to be paid for the goods, and the amount specified in the bond. No rule is better established, than that a party upon whom a fraud has been practised in making an agreement, has the right to rescind that agreement upon discovering the fraud ; bu.t, to render such an act effectual, he must avail himself of tlm earliest opportunity after the fraud is discovered, to put the opposite party in the same position he occupied when the fraudu
It is insisted that, if the securities were not received by the plaintiff absolutely as payment, it is competent for him to recover in this form of action, provided the maker of the note was insolvent, and the mortgage security proved insufficient. It is believed that no principle of law is better established, at the present day, than that the giving a promissory note for goods sold, or for any other valuable consideration, is no payment, unless it is specially agreed to be so taken ; and, in this respect, it makes no difference whether the note be given for a precedent debt, or for a debt created contemporaneously with the agreement; or whether it be the note of a third person, or of the party to the agreement. The authorities in support of this rule are so numerous, apd the rule itself so firmly established, that a reference to many cases is deemed unnecessary. One or two cases in England and this country will, howéver, be cited, that I may the more readily apply the rule to the present case. In the case of Owenson v. Morse, 7 T. R. 64, the facts were, that the plaintiff purchased of the defendant some articles of plate, and
In the case of Johnson v. Weed, 9 John. R. 310, it appears that Johnson sold the defendant goods, for which he agreed to take the note of John Townsend, which was delivered to him. Townsend failed before the note fell due, and the plaintiff brought his action against the defendant for goods sold and delivered. Chief Justice Kent, before whom the cause was tried, charged the jury “ that, unless the plaintiff agreed to receive the note as payment, and to run the risk of its being paid, the mere taking of the note would not amount to payment, if it turned out to be of no value ; and that,- whether the plaintiff did or did not take the note in question, under such an agreement, was a matter of fact for the jury to find.” See also the case of Porter v. Talcott, 1 Cow. R. 359, and the cases there cited.
Applying the principles of these cases to the one at bar, I think enough appears in the bill of exceptions, to have authorized the Court below to permit the testimony offered by the plaintiff to go to the jury, whose province it would have been to determine whether it was agreed between the parties that the securities should be taken by the plaintiff as payment for the goods sold, and he should incur the risk of their being paid. It is true that the bill of exceptions states that the plaintiff sold to the defendants
There is another aspect in which this case might be presented, and which would have authorized the admission of the testimony offered by the plaintiff. It is stated in the bill of exceptions, that the plaintiff offered to show that he stated to the defendants, at the time the securities were taken, that he received them upon the representations made by the defendants, that they “ were good, and well secured on good property;” and that the defendants replied, that “ it was all right; and, if it was not, they should feel bound to make it so.” Would not a jury have been authorized, from such a statement, to infer that, in case the securities taken by the plaintiff should prove insufficient, they would make good the loss? I think such an inference clearly deducible from such a statement; and if so, the evidence should have been permitted to go to the jury.
It was unnecessary to declare specially, under any view I have been able to take of this case. The contract, on the part of the plaintiff, was completely executed, and if the securities were not received in payment, it was competent for the plaintiff to return them to the defendants, and declare generally for goods sold and delivered. At all events, if it was the understanding of the parties
The judgment of the Circuit Court must, therefore, be reversed, and the cause remanded, with instructions to issue a venire facias de novo.-
Judgment reversed.