Thayer v. Jewett

Tiie opinion of tho Court was drawn up by '

Whitman C. I.

— This is an action on a draft, indorsed by the defendants. The defence set up is fraud. The plaintiff, in 1835, had authority to make sale of a certain tract of land ; and, by the finding of the jury, it seems, he was guilty of gross misrepresentation as to the quantity of timber on it, at the time of the sale, to Messrs. W. H. Johnson & Co. of whom he obtained a note of hand, payable in two years, in part for the consideration, which note, when at maturity he put in suit against them, and they settled the action by paying part of the amount due on the note ; and by giving this draft, they being acceptors, for the balance, payable in three months from its date; on which it appears that judgment in a suit théreon has, since it fell due, been rendered against Johnson & Co.

The question now is, can the defendants, who were strangers to the original transaction out of which the draft ultimately originated, and who appear in the character of indorsers on the draft, by way of becoming sureties for Johnson & Co. be allowed to avail themselves of this defence ? There was no pretence of fraud as between them and the plainüíF. Johnson &, Co. who are alleged to have been defrauded, appear, in the course of the year after they had purchased the land, to have possessed themselves of full knowledge of the true state of it; and it was for them to repudiate the purchase, if any good cause existed for their doing so. Yet it does not appear that they were not content with the negotiation. No notice of any discontent appears ever to have been given by them to the plaintiff; and it would seem that they have never seriously resisted payment of the notes, originally given for the consideration ; but on the contrary, two years or more after the purchase, with full knowledge of ■ the value of it, when the note, out of which the draft originated, became due, voluntarily paid nearly one half of it, and gave this draft for the balance; and have suffered themselves to be sued, and judgment to be rendered agqinst them upon it. It would seem to be for the party injured by the supposed fraud to fake advantage of it, and not for strangers, wholly disconnected with it. Johnson & Co. have, moreover, retained the land, and sold considerable portions of it to different individuals ; and have never, so far as appears, rescinded, or offered to rescind the contract of sale. It is believed that no case can be found in which a defence, like the one here set up, and similarly circumstanced, has been sustained. The defendants, if they should pay this debt, unless they have improvident!)' and voluntarily done some act to prevent it, will have their remedy over against Johnson & Co. and therefore cannot be essentially injured by a recovery in this action.

Verdict set aside and a new ti'ial granted.