45 Minn. 150 | Minn. | 1890
This is an appeal by .the plaintiffs from an order overruling their demurrer to one of the defences as set forth in the answer. The plaintiffs, creditors of the partnership of Berens & Nachtsheim, prosecute this action to recover from the defendants the amount of their debt against that firm, basing their right of recovery on a written instrument executed between Berens & Nachtsheim and the defendants, by the terms of which the latter, in consideration of the sale and delivery to them by that firm of all their property, agreed to pay all their debts. The right of the plaintiffs to recover in this action was affirmed by our decision upon a former appeal. Maxfield v. Schwartz, 43 Minn. 221, (45 N. W. Rep. 429.) While the answer is so drawn as to be subject to criticism, and while the defence to which we are about to refer is obscured by allegations of immaterial matter, we think that the pleading must be regarded as alleging that the real agreement of the contracting parties was that,
If Berens & Nachtsheim were seeking to enforce the written contract, a plea of fraud such as is here presented would constitute a defence, even though the defendants may have been wanting in ordinary prudence in relying upon the representations of the other contracting party as to the tenor or contents of the writing. They might still rely upon the defence that this was not their contract. Aultman v. Olsen, 34 Minn. 450, (26 N. W. Rep. 451;) Frohreich v. Gammon, 28 Minn. 476, (11 N. W. Rep. 88;) Miller v. Sawbridge, 29 Minn. 442, (13 N. W. Rep. 671;) Albany Savings Institution v. Burdick, 87 N. Y. 40; Linington v. Strong, 107 Ill. 295; Gardner v. Trenary, 65 Iowa, 646, (22 N. W. Rep. 912;) Thoroughgood’s Case, 2 Coke, 9; Stanley v. M’Gauran, 11 L. R. Ir. 314; Redgrave v. Hurd, 20 Ch. D, 1, 13; Pollock, Cont. 401 et seq., and cases cited; Bigelow, Fraud, 523-525. While in the ordinary business transactions of life men are expected to exercise reasonable prudence, and not to rely upon others, with whom they deal, to care for and protect their interests, this requirement is not to be carried so far that the law shall ignore or protect positive, intentional fraud successfully practised upon the simple-minded or unwary. As between the original parties, one who
These plaintiffs have no rights under this alleged contract, so far as appears, superior to those of Berens & Nachtsheim, the original contracting parties. They simply stand in the place of Berens & Nachtsheim, entitled to the benefits of their contract. If the contract sued upon was affected by any infirmity which would have constituted a defence to an action on it by Berens & Nachtsheim, the same defence may be made as against the plaintiffs. They do not stand in such a position that the doctrine of estoppel, or any rule of necessity under the commercial law, as might be the cáse in respect to negotiable paper, should bar the defence of fraud.
. Order affirmed.