The opinion of the court was delivered by
Kellogg, J.That the defendant was not entitled to the charge requested, upon the case presented by the exceptions, we think is very clear. The note of Smith & Co., which the defendant passed to the agent of the plaintiff, was not the note, which the agent was authorized to receive, and which he had reason to suppose he was receiving; for the defendant assured him, it was his, the defendant’s, note, and that it was for the amount of the plaintiff’s demand,— which was untrue, not only as to its being the note of the defendant, but also as to its amount; and this the defendant must have known. *136The agent was illiterate and could not read writing, and the conduct of the defendant was an imposition. It was, if correctly stated by the witness, a gross fraud, from' which the defendant ought not to be allowed to derive advantage, or the plaintiff to'sustain injury.
Nor can laches be imputed to the plaintiff, by reason of his retaining the note for the period he did, without taking any measures to enforce collection; for the circumstances, under which the note came to the hands of the plaintiff, imposed upon him no duty or obligation to look to Smith & Co. for payment, or to give any notice to the defendant of its non-payment, or even to return the note, except, perhaps, upon, the defendant’s request. Such reception of the note by the agent, under the circumstances attending it, can be no bar to this action.
The plaintiff, when the note came to his hands, might have consented to accept it in payment; and in that event he would have been bound by the act, and in this respect the case seems to have been properly submitted to the jury. Indeed, the entire charge appears to us to be well adapted to the case, and to be unexceptionable. It was all that the defendant could claim, and all that the case demanded.
The judgment of the county court is therefore affirmed.