The plaintiff declared for a deceit in procuring a receipt from his intestate for a note of $327, which he held on Thomas Green, E. D. Lewis, and John Bright. It appeared in evidence that the plaintiff's intestate held a note of the above amount on the persons above stated, and that, in the Fall of 1842, Green, one of the makers, absconded, and that the others had no visible effects. An attachment was issued on the note at the instance of the plaintiff's intestate, and was levied on property alleged to belong to Green. While this suit was pending in the County Court of Rutherford, Lewis, being about to avail himself of the benefit of the insolvent debtor's *Page 544 act, procured the defendant to take a parcel of insolvent notes, amounting to about $1000, to the intestate of the plaintiff, who resided about eighteen miles distant, for the purpose of exchanging a portion of them for the note of $327. It further appeared that the intestate was an aged man, and afflicted so that he went little from home, and was unacquainted with the makers of these notes; that the defendant, in strong terms, represented them as solvent. The exchange was agreed to be made. The plaintiff's intestate received of the notes offered, several amounting to more than his note. He gave a receipt against the note, which was not present, and a conditional note for the difference, which was about three dollars. It appeared further that the attachment remained on the docket till February Term, 1844, when it was dismissed at the cost of the plaintiff, but the note was filed away in the office of the clerk, and remained there. It was proved that all the notes taken by plaintiff's intestate in exchange were insolvent, as was the note which he parted with.
Plaintiff's counsel insisted: 1st. That he was entitled to recover to the amount of the notes transferred, with interest.
2nd. But if not so, he was entitled at least to the $327 and interest.
The defendant's counsel contended that plaintiff could not recover at all, for the reason that he still had control of his note, and, that if cheated in the transaction, he could still show it, and avoid the receipt as evidence of payment; and, for the further reason, that his own note was insolvent.
His Honor instructed the jury, that if the defendant knowingly misrepresented the condition of the makers of the notes passed to the intestate, and fraudulently obtained from him the receipt mentioned, the plaintiff would be entitled to recover at least nominal damages; and if they believe that the whole, or any part, of the note obtained of the intestate could have been collected, that sum, with interest, would be the measure of plaintiff's damages.
The jury returned a verdict for nominal damages. Judgment and appeal by the defendant. *Page 545 When this case was before the Court at August term, 1854, (see 1 Jones' Rep. 545,) it was held that the instrument upon which the plaintiff's action was founded, and which was called a receipt, was not, in fact, a receipt for the payment of money, but was in the nature of a contract, by which the parties were compromising their rights. Taking it as a contract between the parties, if the plaintiff's intestate had sustained substantial damages by having been induced to enter into it by the fraudulent misrepresentations of the defendant, we do not see why he might not recover such damages upon the general principle decided in Pasley v. Freeman, 3 Term Rep. 51, and that class of cases, many of which are referred to inMarch v. Wilson, Busb. Rep. 143. So we cannot see why, upon failing to prove that he had sustained substantial damages, he cannot recover nominal damages upon the jury's finding that he did commit a fraud in the transaction alluded to. Assuming that the note or bond which the intestate held was upon insolvent persons, yet, the law would imply that he had sustained some damage by having it taken from him by the fraud of another person. And in such case, the person perpetrating the fraud, cannot escape from the consequences of his act by saying that the intestate might recover his bond. The trouble and expense of doing so would be a damage for which, at least, the defendant ought to be responsible.
PER CURIAM. There is no error in the judgment below, and it is affirmed.