Willson v. Foree — 6 Johns. 110

Majority

p. 110

Willson against Foree.

NEW-YORK,

May, 1810.

Headnote

tiate any contract: And if the contract be ground of fraudt waiv|artá, ™nd *f "S assimpsit Where, on the sale of goods, the vendor takes the note of third person, tureW<day,a in ojiíTSk atand there is a frauduleat representation, on the part of the vendee as to the note, the vendor may bring his ateiyv forgoods ed,d againstthe vendee. Fraud will vi-

THIS cause came before the court, ón a writ of error, from the Duchess common pleas. '

Tr, , . . _ Willson brought an action on the case against Foree, 911 d declared in assumpsit, 1. For a horse, chair, and ilarness, sold and deliverd; 2. For money lent, money had and received, &c. 3. And an insimul computassent. The defendant pleaded non assumpsit, with notice of evidence 1 Á 7 to be given, at the trial, of money had and received by . the plaintiff; and that the - plaintiff and the defendant agreed to exchange, and did exchange the horse and c^air for a single bill, signed by John Whaley, made to Silas Austin, dated 1st rifay, 1805, for 250 dollars ; and 7 J? ? 7 that the plaintiff took the bill in full satisfaction of the . . ■ horse and chair; and further notice of setting off the . ... . , . , , . . „ bill; a notice was, at the same time, given to the plaintiff to produce the bill at the trial.

At the trial, the plaintiff gave in evidence, that on the yth June, 1808, he sold and delivered to the defendant the horse and chair, worth 300 dollars. .

The defendant proved, that at the time, the parties agreed that the plaintiff was to let the defendant have the horse and chair; and, in payment, the plaintiff agreed to take a note for 250 dollars, dated 11th December, 1804, payable 1st May, 1809, given by Whaley to Austin, at the plaintiff’s own risk ; and that the note was delivered accordingly.

The plaintiff then offered to prove, that the defendant, at the time, knew that Whaley was insolvent, though on the same day, and previous to the delivery, he represented him to the plaintiff as aman of property; that the plaintiff had, afterwards, and before the suit was brought,, offered to return the note, and. demanded the payment, which was refused. This testimony was objected to by

p. 111

the defendant’s counsel, and rejected by the court, and the plaintiff was nonsuited. A bill of exceptions was taken, on which the writ of error was brought.

The cause was submitted to the court without argument.

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-