Wiilliams v. Hicks

[39] The opinion of the court was pronounced by Paddock, J. The defence against a recovery in this case appears to be, first, that there was no consideration for the giving of the note in question,and the four others; the patent right,for the purchase of which they were given in payment, being useless and of no value,at the time of the purchase : and secondly,Hast Mixer, the vendor, to whom the notes were executed, made use of false and deceitful representations to the defendants at the time to induce them to purchase. . The plea in this case being the general issue, almost every matter may be given in evidence under it, which goes to show that the plaintiff had no cause of action at the time he prayed out his writ: for the action being founded on the contract or promise of the defendant, any thing which disaffirms the obligation of the contract, at the time the action is commenced, goes to the gist of the action.' — Chitty’s PI. 465. — The want of a sufficient consideration for the promise, or that the consideration had failed after the promise was made, would form a good defence to the action, the evidence of which would be admissible under this plea. — Sill vs. Rood, 15 Johns. R. 230. But the law seems to be well settled, that a partial failure of the consideration for a promise cannot be set up as a defence in a suit brought upon it, under the issue of non assumpsit; and more especially where the suit is upon a promissory note ; for it would operate as a constant source of surprise upon plaintiffs, against which they would not be prepared to defend. — Sill vs. Rood.— Temple vs. Mc Lacklan, 2 New R. 136. — Farnsworth vs. Garrard, 1 Campb. 38. — Basten vs. Butler, 7 East 479, and Brown vs. Davis, in n. How much weight the jury gave to the testimony given in the trial “ that the patent was useless, and of no value, and a vile cheat,” under the instructions of the court, “ that if they found the patent to be of no value, or that the discovery was no improvement, or, a much less improvement than represented,” 8ac. we cannot tell, other than it gave to the jury great latitude. The difference in profit between making saddles upon Mixer's plan, or in the ordinary method, was not what the defendants purchased : but it was the right of using and improving Mixer’s patent, or, in other words,a licence to make saddles after the manner and fashion described in his letters patent. And' whether the discovery was valuable, or an improvement, or not —whether profit or loss would be the fruit of making saddles according to it, cannot affect the consideration of the notes given, as [40] it is a'naked purchase.lt would be a different question had the patent been'vacated or overturned; at least, there would be some ground's Upon Which the defendants could make a claim upon Mixer for such proportion of the sum paid, as the time they then had the right of using it by the contract,bore to the time they hád actually improved it; which would be according to the decision in Taylor vs. Hare, 1 New Rep. 260. — But it is there said, that in Arkwright's case, though it was vacated before the time in Which it would have expired, yet no money was ever recovered back, notwithstanding large sums had been paid for the use of it. We are next to see if any fraud was practiced upon the defendants by Mixer-,which led them into the trade.The evidence to support the charge was, “ that Mixer, to induce them to purchase informed them that NeiOton Mayes, a saddler, in the town of Burlington, had offered him ‡300 for the three northern counties in this State,” and the defendants relied upon the representation-, supposing it to be true, but which proved to be false. Also, “ that his uniform price for license to make said saddles, was ‡3, each, and that he had sold so in New Hampshire, which was also false.” To support a defence upon the charge of fraud, it must be clearly alleged to have been committed by the plaintiff, and a 'damage resulting from such fraud to the defendants. The fraud must consist in depriving the defendants by deceitful means, of Some benefit which the law entitled them to demand or expect. —Vernon vs. Keyes, 12 East, 636. — Where are we-to look, in this case, for either the fraud practised upon the defendants by Mixer, or damage which they have sustained by means of any art or representation of his at the time of the sale ? The case which the parties mutually made out, and have presented to this court, as a bill of exceptions, though not certified as such from the court below,does not instruct us whether the defendants purchased any, and if any, what portion of the State, or United States, of Mixer. It says, “the notes were given by the defendants, for the purchase from Mixer, of his patent right for making, using, and vending saddles.” From which it would be too much to infer that the purchase covered either the three northern counties in this State, or the State of New Hampshire ; and if neither, how they have sustained any damage from his representations as to what Hayes would give, or what he sold privileges for in New-Hampshire, we are left to conjecture. [41] It may be remarked,too,that the defendants do not say they were Influenced, or induced, by his representations to purchase of him; -and it certainly is not for.the Court to say that they were. Noth-lug is more difficult than to tell the moving cause to another man’s action. If the inducement to purchase did not proceed from the representations, then the damage disappears at once, however losing their bargain may have been. As it respects what Mixer said of his price for selling licences for making single saddles, and that he had sold so in New Hampshire, the declaration, if it can amount to any thing, was too general to admit of the falsity being proved by shewing individual cases of sales at a less price ; for had he sold in any instances, or in any part of the State of New Hampshire, at $3, his representation would have been true. But admitting the fact that the defendants did purchase the right as to the three Northern Counties, and that he made the representation of Hayes’ ofler, and that his uniform price for licenses to make saddles was ‡3, each, and he sold so in Neto Hampshire, and that both of those representations were false; according to the rule laid down by Ld. Elinbourough in Vernon vs. Keys, a damage must result from such false representation in order to constitute a fraud, and that clearly alleged: saying that “the patent was useless, and of no value, and a vile cheat,” is not sufficient; all that might have been true, and perfectly understood by the parties at the time. This case compares Fully in principle with that of Vernon vs. Keys, which was first decided in the Kings Bench in 1810, and i afterwards removed into the Exchequer Chamber, and decided again in 1812 — both Courts concurring in the opinion that the misrepresentation was not of that character which could constitute a fraud; and in the latter Court, Mansfield, Ch. J. says “ it is no more than what every seller in this town does every day, who tells every falsehood he can to induce a buyer to purchase.” 4 Taunt. 494. The case of Bayley vs. Merrill, Cro. Jac. 386, is also in point, which is, that’ Merrill contracted with Bayley to draw a load of madder a certain distance, at a given price, affirming that the weight was but 8 cwt. whereas, it was 22 cwt. and by means of the difference, he sustained an injury: but it was held that the plaintiff might have weighed his load,and not trusted towhat the defendant told him. So in the case ofHarvey vs. Young, YeZ-y.21,~the defendant had a term for years,and in a treaty with the plaintiff for the sale of it, affirmed that it was worth£l 50; upon which-the plaintiff gave that sum.lt proved to be worth but £100: [42] but it was held by the Court to be but the bare assertion of the defendant, and it was the plaintiff’s folly to believe him. Also, in 1 Rol. Mr. 801 pi. 16,“ If a man, having a term for years,offers to sell it to another, and says that a sti anger would give him £20, for it; by means of which assertion the other buys it,when in truth he was never offered £20 for the term: though he be deceived in the value,yet in truth no action onthe case lies.” And in the case at bar, if the defendants had an interest in knowing what Newton Hayes had offered Mixer, the distance from Bennington to Bur* lington was not so great, but that they might easily have applied to him and ascertained the truth; and if they did not, it was their own folly to dispense with that which common prudence required they should have done. Williams and Collamer, for plaintiff. Hutchinson, for defendant. The Court are not able to determine upon what the, jury founded their verdict; whether they found there was no consideration for the note,or found what they were instructed would be a fraud: either of which they might perhaps have found from the instructions given them by the Court, if the same has been truly reported to us in the bill of exceptions. The Court are satisfied that the' declarations of Mixer, at the time the contract was entered into, were not such as the law will declare a frau,d ; and also, that the instructions given to the jury in the court.below, were erroneous ; and that thejudgment of the county court must be reversed, and a new trial granted. Judgment reversed.