15 Johns. 475 | N.Y. Sup. Ct. | 1818
The case of Wilson v. Foree, (6 Johns. Rep. 110.) is in point to show that a note taken under such circumstances, is no payment. That case also shows, that the special contract as to the manner of payment being void on account of the fraud, the plaintiff may disregard it, and bring assumpsit for goods sold. The fraudulent representations made by the defendants vitiated the whole contract as to payment. There can be no question that this would have been the situation of the parties, had not the plaintiffs given their notes for the delivery of the whiskey at a future day; but this cannot alter the situation of the parties. Those notes were given under the same deception, occasioned by the fraudulent conduct of the defendant ; they cannot be binding on the plaintiffs. This fraud would have been a good defence to these notes, had it been known to the plaintiffs before the whiskey was delivered, of which, however, there is no evidence. The non-suit must, therefore, be set aside, and a new trial awarded.
