62 Wis. 64 | Wis. | 1885
The complaint was for money had and received, or for money paid by th.e plaintiff to the defendant for the purchase of a mare warranted and falsely represented to be sound, kind, and true, when in fact she was not. On the trial it was shown by the plaintiff that the consideration of said purchase was a promissory note given by the plaintiff to the defendant, or order, December 15, 1880, for $125, payable the first da}7 of April, 1881, without interest. The note was produced by the defendant and offered in evidence by the plaintiff. The evidence on the main issue tended to show the fraud, as alleged, and the warranty and its breach; an offer by the plaintiff to return the animal and the defendant’s refusal to receive her; and also his refusal to return the note on demand. Pending a motion of the defendant for a nonsuit at the close of the testimony, the plaintiff was allowed to amend his complaint (against objection by the defendant), in substance as follows: To allege the giving of the note, instead of the payment of $125; the demand for the return of the note, instead of for the payment of the money; and the refusal to return the note, instead of the refusal of payment of the $125. The allowance of this amendment was excepted to by the defendant, and this is the first alleged error to be considered.
This amendment entirely changed thd action from one on contract, and in assumpsit, for money'had and received, to one of tort or of trover, which is not allowable. The rescission of the contract of purchase on the ground of fraud is the foundation -of the action. If the complaint had alleged the payment for the animal in specific personal property, when amended, or if the promissory note of the plaintiff could be treated as such, as it is only on this theory
In connection with this point, the more important questions have been submitted by the learned counsel on both sides, whether on the complaint as amended the plaintiff could recover anything; and if so, how much, on the evidence. ■
The note was past due, and was still in the hands of the defendant when the action was commenced, and on the trial the defendant produced it, and the plaintiff introduced it in evidence.
The verdict, under the instructions of the court, was for
Still another absurdity would be involved. The plaintiff; could recover, in .an action of trover in which a setoff or counterclaim could not be allowed, the face value of the note, and at the same time, or directly thereafter, the defendant could recover in another action of the plaintiff the same amount on the note. The paper, as a promissory note, is of no value whatever in the hands of the defendant after due, and it cannot be used to injure the plaintiff. Then Row can any value be recovered Jor its non-delivery on demand, in an action of trover or in any other action ? The note was not payment for the animal purchased; it was a mere promise to pay. Van Ostrand v. Reed, 1 Wend. 424; Paine v. Voorhees, 26 Wis. 522; Aultman & Co. v. Jett, 42 Wis. 488. If there was the payment of nothing, how can anything be recovered? It is a clear case of “ fraud without damage.”
In respect to the remedy, this note, void for fraud, is as a note paid. It may be said that the maker is entitled to its possession; if so, trover is not the remedy. Replevin or detimie may lie in such a case, but even that is questioned in Todd v. Crookshanks, 3 Johns. 431, and Wain v. Bailey, 10
By an oversight, interest was allowed upon the sum secured by the note, when the note itself bore no interest. That of itself would work a reversal of the judgment, even if the action could have been maintained. But we thought it our duty to pass upon all the questions raised, to save future costs and litigation.
By the Court.— The judgment of the circuit court is reversed, and the cause remanded for .further proceedings according to law.