Herrick v. Whitney — 15 Johns. 240

Majority

p. 240

Herrick against Whitney and others.

Headnote

There ís a warranty implied in the transfer tiabie’^instounoTVorged! ‘S pLyeíofínote tent°wUne?s^or arf againstthemaker, although the holder took risk as to the mlker7°hehe (inertinterest maker,morder seffai'-ainsthis implied warranty.

THIS was an action of assumpsit, on a promissory note, . x v * dated March 6th, 1816, payable in six months to John Fitch, or bearer, and executed by the defendants. The cause was tried before Mr. J. Platt, at the Oneida circuit.

Fitch was called by the plaintiff as a witness to prove the execution of the note by the defendants, and stated that he the note to one Cummings in payment for a pair 0f horses, but at the risk of Cummings, as to the solvency of ’ ° 1 J the makers, and that he had no interest in the suit. . The defendants’ counsel objected to the competency óf the witness;' the judge, however, admitted him. A verdict was taken against the defendant, Whitney, for the amount of the note, subject to the opinion of the court, and in favour of ^le other defendants, who were proved to be infants.

p. 241

The case was submitted to the court, without argument,

The witness was responsible upon an implied warranty that the note was not forged. He, therefore, had a direct interest in establishing the fact which he was called to prove; for by obtaining a verdict for the plaintiff, on the plea of non assumpsit, he protected himself against his own warranty.

Judgment for the defendants.^[1]

(a) (a) • (a) A forged note is not payment of goods sold, and the seller may treat it as a nullity, and bring his action on the original contract. (Markle. v. Hatfield, 2 Johns. Rep. 455 .) The vendor of a chattel, being liable to the vendee on the implied warranty of title, is not a competent witness in an action against the vendee by a person claiming it. (Heermance v. Vernoy, 6 Johns. Rep. 5 .) For the same reason, the grantor of land, with warranty, express or implied, is inadmissible in support of his grantee’s title. (Jackson and Caldwell, v. Hallenbackf 2 Johns. Rep. 394 . Swift v= Qeant 6 Johns. Rep. 523 . Smith v. Chambers, 4 Esp. Rep. 164.)