[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 255
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 256 The bond given by the defendants to the plaintiff was conditioned, among other things, to save the plaintiff harmless and keep him clear from all liability for deposits made in the Bank of Canandaigua. The bank was an individual bank, and the plaintiff, from its commencement, having either been a partner or sole owner, was liable personally, either solely or jointly with his partner for the time, for all money due and owing to the depositors of the bank. It was the intention of the bond to protect the plaintiff against this liability, and the plaintiff received it for that purpose. The complaint in the action of Sarah Bushfield, executrix, against the plaintiff and William Antis, and the other proceedings in that action, which were given in evidence upon the trial of the present action, show that that action was brought, to recover money due to plaintiff's testator and to others who had assigned their demands to her, for money deposited in the bank while owned by the plaintiff and Antis. The contest upon that trial was, whether the deposits were paid in the note of Sheffer, the defendants therein *Page 257 insisting that the note was received as payment, and that Messenger and Antis were free from fraud in the transaction, while the plaintiff insisted that the defendants therein, had warranted that the note was good and would be paid at maturity, and that it was taken conditionally as payment in case it was paid by the parties liable thereon, and further, that the defendants made fraudulent representations in regard to the solvency of the maker and indorser, to induce the testator and the others to take the note, upon the discovery of which and of the notes being worthless, they tendered the note to the defendants and demanded payment of the money due to them respectively. The jury, by their verdict for the plaintiff, found one or the other of these positions to be true. The defendant Messenger, having had notice and assumed the defence of the action, was concluded by this verdict. Upon either assumption, the deposits claimed by Mrs. Bushnell had not been paid. If the note was received as a conditional payment, in case it was paid, it clearly was not a payment, as there was no pretence that the note, or any part of it, had ever been paid. If received as an absolute payment, and the parties were induced so to receive it by the fraudulent representations of Messenger and Antis as to the solvency of the parties liable for its payment, the parties so receiving it had the right, upon discovering the fraud, to return or tender the note, rescind the agreement, and recover the money due them as depositors. This tender of the note was made, and the jury have found, either that an agreement was made to receive the note as payment, which was rescinded for the fraud of plaintiff and Antis, or that it was received as conditional payment only. In either case the deposits had not been paid, and the plaintiff was liable for such payment, which he had been compelled to make by the judgment of the court. The plaintiff thus brought his case directly within the letter and plain intention of the bond; and in the absence of further proof, a right of recovery thereon was established. But the court upon trial assumed, and the assumption appears to have been warranted, that books were kept by the bank showing *Page 258 the amount of circulating notes outstanding, and all liabilities for unpaid deposits. That these books were regarded as representations of the plaintiff of the sums due depositors, and that the plaintiff could not, therefore, recover for such liabilities not appearing upon the books or otherwise made known to the plaintiff. This conclusion was correct. The representation of the plaintiff as to what were the liabilities to depositors, when acted upon by Messenger by giving the bond, would estop the plaintiff from showing that there were further liabilities of the same character. The books of the bank showed that the deposits in question had been paid in the Sheffer note, and that nothing was due thereon. Thus a defence in the absence of further proof was established. The question is, whether the additional proof given by the plaintiff was a sufficient answer to it, or created such a doubt as to the truth of any material fact, upon which it was based, as to require the submission of the question to the jury. The plaintiff, among other things, testified that the claims embraced in the action of Bushnell against him and Antis, were made to him in Messenger's presence. That he knew what the nature of the claims was and how they arose. We talked the matter over together before the execution of the bond by the defendants. This witness further testified, that the parties all came to the bank and demanded their money; and it was well understood that these claims existed when I sold out to Messenger. He and I talked of compromising the claims before the bond was given. The evidence was sufficient to require the submission to the jury of the question, whether the plaintiff did or did not know that the claims for unpaid deposits, upon which the Bushnell judgment was subsequently recovered existed, and were insisted upon at the time of giving the bond, notwithstanding they appeared by the books to have been paid. This was corroborated by the fact of Messenger's assuming, without question, the defence of the Bushnell suit, upon being served with notice of its commencement. We have seen that the bond included all liabilities for unpaid deposits. There was no evidence showing that Messenger *Page 259 acted in giving the bond upon the representation of the plaintiff, that these claims for unpaid deposits, though insisted upon, had in fact, no existence. The plaintiff was not, therefore, estopped from proving that they were not only made, but were well founded. This was proved by the judgment. The learned judge erred in nonsuiting the plaintiff. He also erred in rejecting the testimony of witnesses offered by the plaintiff tending to show that Messenger knew the facts in regard to these claims, and the grounds upon which they were based prior to giving the bond. It appears, from the prevailing opinion given at the General Term, that that court affirmed the judgment upon the ground, that the Bushnell judgment was for damages sustained by the fraudulent representations of Messenger and Antis, as to the solvency of the parties liable for the payment of the Sheffer note, and that the bond did not include damages sustained from frauds practiced by Messenger and Antis. The conclusion was correct. The error was in the premises. The judgment was recovered for unpaid deposits. The evidence of fraudulent representations was given not as a basis for damages, but to show that by reason of the fraud, the agreement to receive and the receipt of the note did not effect the payment of the money deposited. The judgment appealed from must be reversed and a new trial ordered, costs to abide event.
All concur save FOLGER, J., not voting.
Judgment reversed.