After argument,
Hutchinson, C. J.,pronounced the opinion of the Court. — But little need be said in disposing of the question about the two dollars, allowed the defendant as charged by him. It appears by the report that the plaintiff owed that sum to Caldwell, and the defendant owed plaintiff; and it was mutually agreed between the three, that the defendant should pay Caldwell, and the turn be made all around. It seems to have become an agreement executed — a change of debtors; and, on that account, the actual payment to Caldwell being after the commencement of this action, makes no difference ; especially, as the statute requires all accounts to be audited down to the day of hearing.
The only question of importance raised, is, whether the plaintiff’s account has been legally satisfied, paid, or discharged, by his receiving the notes and the tender of the bureau, Sic. as stated in the report, and decided by the auditor, and affirmed by the county court.
We have found some difficulty in agreeing among ourselves upon this question. The report says nothing whether the plaintiff and defendant were alike ignorant of the value of such a bureau as was shown to the plaintiff in presence of the defendant, and af-terwards turned out by Van Alstine in payment of the note; or whether both were alike ignorant, what sort of a bureau was promised by the note itself. But the case presents Van Alstine perpetrating a gross fraud, of which the plaintiff was the dupe, and the injury of which he must sustain, unless he can recover in this action. And, if the note, while in the possession of the de-*211íendan't, was worth but $16 or $18, and he, through the agency of Van Alstine, can palm it upon the plaintiff for $28, the defendant would take the benefit of the plaintiff’s loss.
By the terms of the contract, if this note was not paid, the plaintiff’s accouut was not paid. A bureau was tendered, which the plaintiff did not receive. He assigns as a reason, that he was fraudulently dealt with about the value of this article, when he concluded to receive this note, payable in a bureau ; and that he has now discovered the fraud,and will not sustain such a loss in this manner. And, truly, he had a right to be off, any time before the business was closed, if he was thus defrauded, and made the discovery in season to be off. He was not obliged to receive the bureau at such a loss. But it is said, that the defendant committed no fraud. Van Alstine was the man to-be blamed, if any, and he turned out such a bureau as answered his contract with Powers, which was contained in this note. But Van Alstine said what he did in presence of the defendant. And it is not unfair to consider Van Alstine, under all the circumstances reported in this case, as uttering a falsehood for the benefit of the defendant, in his presence ; and now the defendant, in defending this suit, and claiming the benefit of that imposition upon the plaintiff, virtually makes it his own, If it be true, that Van Alstine had a right to turn out such a bureau as described in the note, in payment of that note, the defendant has no right to claim of the plaintiff, that he shall receive such pay on his account, as would amount to but half of it, unless he has become holden so to do by some fair agreement. As between plaintiff and defendant, the plaintiff was to have a bureau worth $28, and he allowed that sum for it. And when he found that one of but $16 value was to pay him $28, he had a right to refuse such payment-. If the defendant, when he owned the note, was entitled to nothing in payment of it, but a bureau worth $16, Van Alstine was not liable, as between him and the defendant, to deliver one of any greater value than tbát. He, therefore, had no interest in fixing to the bureau, which would pay the note, any greater price than its true value,unless it were to aid the defendant to sell the note for more than it was worth. That purpose would be fully answered, if this judgement should be affirmed. Under these circumstances the plaintiff had a right to refuse the bureau, and return the notes to the plaintiff. This he has done. And this would enable the defendant to require the same pay of Van Alstine, which he might have required if the note had never been delivered to the plaintiff. The defendant loses noth-*212hig by ail this, except, that he fails to get that sum- of twelve of fourteen dollars,of which the plaintiff came near being defrauded* The judgement, of the county court is reversed, and such'a judge-' ment must be entered as the county court ought to have rendered, to wit; (hat the plaintiff recover the amount of his account, except the two dollars and interest on the same since April term, 183-0,- and his cost of suit.
N. L. Whittemore, for plaintiff. Hunt & Beardsley, for defendant.