Wyatt v. Ayres

2 Port. 157 | Ala. | 1835

By Mr. Justice Hitchcock :

This is an action brought on a note, under seal, dated 23d April, 1830, payable 25th December following, for one hundred dollars, given by the defendants, payable to the plaintiff. The defendants pleaded, that the writing obligatory sued on, was obtained from them by covin, collusion, and misrepresentation, by one James Thompson, in this — that the said James Thompson, before the making of the said instrument, had instituted and was prosecuting a variety of motions in Jefferson Circuit Court, against the defendants and their securities, who had been sheriffs of said county, for failing to return, according to law, a variety of executions, which had issued upon judgments in said Court, and which had beep, placed in their hands to execute and return, according to law. The plea sets out the motions, shewing a number of cases between different persons. It then states, “ that the said Thompson, by falsely and fraudulently representing to the said Ayres, that he, the said Thompson, was the lawful agent of the said plaintiffs in said motions, and was duly authorised to institute the same, falsely and fraudulently induced the defendants, upon a compromise of said motions, to execute the said instrument, when in truth and in fact, the said Thompson, at the time of the institution of said motions, and at the time of tho making of the said compromise, and the execution of the said instrument, was not the lawful agent of the plaintiffs in the motions, and had never received any authority from them to institute, prosecute, or compromise the same. The plea farther avers, that with a view further to deceive, defraud, and injure the defendants, the said James Thompson artfully solicited and induced the defendants to execute the said instrument, when he, the said James Thompson, well knew that the plaintiff had no interest in the same, and when in fact, he had no interest in the same, or in any part of the motions which had been instituted, and were pending.”

To this pica, there is a general demurrer, which was overruled, and the plaintiff has brought this case here upon writ of error; and his counsel insist that the plea is bad — because,

1. It shews a consideration for the note, to wit, the compromise of the motions, which was. a present benefit.

2. It says, the plaintiff artfully induced them to give the note to Wyatt, without describing in what that act consisted; that fraud implies falsehood, and there may bo art without falsehood: that art may mean ingenuity and skill, and is consistent with truth. Fraud is a question of law. The facts must be stated to enable the Court to decide, whether it amounts to fraud.

3. The plea docs not charge that Thompson acted as the agent of Wyatt, and Wyatt is not charged as participating in the fraud.

4. The promise contained in the note, is unconnected with the fraud, if any, and therefore, is not tainted with it. The making of the note was subsequent -to the contract for the compromise, and therefore not affected by it, supposing it to exist.

5. The plea does not directly charge that the note was executed in consequence of the misrepresentations ; and for aught that is alleged, the defendants may have been fully apprised of the falsehood of Thompson, and they may have chosen to accept of such compromise, as he could make; if so, though his representations were false, yet, the defendants may not have been deceived.

Both, the counsel for the plaintiff and defendants, have argued this case upon the authority of the case of Armstrong vs. Toler;² and both appear willing to rest it upon the principles of that case.

The principle stated in that case, is, “ that where a contract grows directly out of an illegal or immoral act, and is directly connected with it, the contract is void; but, that where the contract, though it may be intimately connected with an illegal or immoral act, yet if there be a distinct consideration, however closely connected Avith the act, yet the contract shall be sustained.”

Noav, here, the plea directly charges, that Thompson had no authority to make the motions; that he falsely represented that he had; that having falsely represented that he had, he fraudulently induced the compromise; that the consideration of the note was the compromise; and that he artfully induced and solicited the making of the note to Wyatt,. when he knew that Wyatt had no interest in the Motions, and that, in fact, he had no interest.

If these facts do not make out a case of a contract, growing directly out of an immoral act; connected with it, and directly depending upon it, it would be difficult to say what would.

Swindling, is defined tobe, “ cheating and defrauding grossly, with deliberate artifice.” The fraud commenced here, by the institution of the motions, and was continued by falsehood, until it Avas consummated, by procuring the note ; and the AAdiole transaction was, both illegal and immoral. The demurrer admits the truth of the plea, and all legal and fair inferences to be drawn from it; and it is not con--ceived that it is obnoxious to any one of the positions which have been insisted on by the plaintiff’s counsel,

The judgment must be affirmed.

2 11 Wheat 258