Gilman v. Peck

The opinion of the court was delivéred by Redfield, J. Notwithstanding it is said in Wade’s case, 5 Coke’s R. 114. in regard to the payment of money, “ If there be any counterfeit money in the same, yet, if the party then accept the same, he cannot compel the party to change it ; or if it be rent, yet the once acceptance is good, and the lessor may not reenterand notwithstanding the doubts which have been intimated in the intermediate cases by eminent judges, it is at present, I apprehend, well settled, both in England and in most of the American states, that a payment in base coin, or counterfeit, or worthless bank paper, is no valid payment. This is said by Abbott, C. J., in Wilkinson v. Johnson, 3 B. & C. 428, S. C. 10. C. L. 140, to be the clear and undisputed general rule of law. The following, among other cases, fully sustain this principle. Jones v. Ryde, 5 Taunt. R. 488. Markle v. Hatfield, 2 Johns. R. 455. Young v. Adams, 6 Mass. R. 182. There is one important exception to the general rule above stated, in regard to bills or checks, i. e. where the forged instrument bears, or purports to bear, the signature of the person accepting the same, or of his correspondents, and he is guilty of negligence in accepting a forged paper when he had superior means at hand to determine its genuineness, which were not in the power of the other party. This exception is, no doubt, well founded, and is sustained by numerous adjudged cases of high authority. Bank of the U. S. v. Bank of Georgia, 10 Wheaton’s R. 333. Gloucester Bank v. Salem Bank, 17 Mass. R. 33. Price v. Neal, 3 Burrow’s R. 1354. Smith v. Mercer, 6 Taunt. R. 76. Bank of St. Albans v. Farmers and Mechanics Bank, 10 Vt. R. 141. In many of the above cases the general rule above stated is fully and distinctly recognized. In the case of the Bank of the U. S. v. Bank of Georgia, Jus [520] tice Story says, “The modern authorities certainly do, in a strong manner, assert, that a payment received in forged PaPeC or any base coin, is not good, and if there be no negligence in the party, he may recover back the consideration paid for them, or sue upon his original demand.” Of the same import are the cases of Jones v. Ryde, Markle v. Hatfield. In 10 Vt. R. 145., judge Phelps says “ It seems now well settled,that a person giving a security in payment, vouches for its genuineness.” In most of the more recent cases it is expressly held, that the party receiving such forged or worthless paper, without fault, may, when he pays money for it, maintain an action for money had and received, or if he receive it in payment of a preexisting debt, resort to his original cause of action. In addition to the above cases, this point is expressly decided in the case of Manufacturers and Mechanics Bank v. Gore et al. 15 Mass. R. 75. In the last case, C. J. Parker, says, “that when goods are purchased upon credit, or money borrowed, and the security agreed upon by the parties turns out to be of no value, and different from what it was represented by the debtor, it may be treated as a nullity, and an action will lie immediately for the sum it was intended to secure.” This was the point then distinctly in judgment. And, although in the present case the plaintiff might, probably, upon- the facts found, have brought a special action, in case, against the defendant, yet he was not bound so to do. He might resort to his original demand. And in doing so, it is not very easy to perceive any good reason why he is not entitled to the same remedy, which he would have been entitled to if no payment had been attempted. The facts reported in the present case, show distinctly that it was only by the false and fraudulent representation of the defendant that the plaintiff was induced to take the bill. If, then, the plaintiff may sue upon his original demand, it comes with a very ill grace from the defendant to ii^st that lie shall be deprived of his remedy on book, in consequence of the acknowledged fraud of the defendant. For, without that, these articles would have been charged on book in the ordinary course of business. But as it has been long settled law, that a charge on book is not essential to the right to maintain the action, no case occurs to me where the plaintiff [521] may maintain a general action of assumpsit, for goods sold and delivered, and cannot equally maintain this form oí action. We think the plaintiff should be allowed the present remedy. J Judgment affirmed.