The evidence offered ought to have been received. It went to prove fraud in the defendant, in the special contract which he set up as to the payment; and it is a well settled principle of law, that fraudulent representations will vitiate any contract. The basis of every contract is good faith. If the special contract be void, on the ground of fraud, the plaintiff may disregard it, and bring assumpsit for the goods sold. The taking of the note under a fraudulent misrepresentation, was no payment j and any term of credit which the taking of the note may have implied, became void. (1 Esp. Cases, 430. 2 Esp. Cases, 522, 1 Comyn on Contracts, 38.) The plaintiff was nonsuited below, but still, error will lie on a judgment of nonsuit, in cases where costs are awarded by the judgment. (2 Johns. Rep. 9.) The judgment below was erroneous, and must be reversed.
Judgment reversed-