Buhrman v. Baylis

Gilbert, J.: The fact that the home was not sound constituted a partial or total defense to the note, unless the plaintiff is-a bona fide holder thereof for value. (Payne v. Cutler, 13 Wend., 605.) It was not necessary that the defendant should- have rescinded the contract of sale in order to let in such defense. He was at. liberty either to rescind the contract, or to affirm it, and to claim damages for the false representations. The evidence is, that the plaintiff took the note in payment of an old debt. That, according to the settled law in this State, is not sufficient to constitute the plaintiff a bona fide holder for [609] value. (Coddington v. Bay, 20 Johns., 637; Weaver v. Barden, 49 N. Y., 293; Chesbrough v. Wright, 51 id., 662.) The declaration which the defendant made to the plaintiff, at the time the note was transferred to the latter, did not create an estoppel in pais, for two reasons, viz : 1. It does not appear that the plaintiff was misled thereby to his injury. He neither paid, nor parted with anything on the faith of the defendant’s statement. 2. He knew that the note was given for a horse sold with a warranty of soundness, drew the note himself, and received it immediately after it was given, and before the defendant could have ascertained whether the horse was sound or not. Two essential elements of an estoppel, therefore, are wanting, namely, actual misleading and resulting injury. (Payne v. Burnham, 62 N. Y., 72; Cont. Bk. v. Bk. of the Commonwealth, 50 id., 575.) The judgment must be reversed, with costs. Present — Barnard, P. J., Gilbert and Dykman, JJ. Judgment of County Court reversed, with costs.