Hoopes v. Strasburger

Bartol, C. J., delivered the opinion of the Court. The appellee sued the appellant in assumpsit, and declared for goods bargained and sold and on an account stated ; the narr. also contains the other common counts.The defendant pleaded; “that he never promised as alleged,” and “payment.” At the trial the plaintiff produced a promissory note, dated December 6, 1867, for $150, payable twenty days after date, to the order of Y. Strasburger, (the plaintiff,) and signed by Brewer & Hoffacber, and offered to deliver the same to the defendant, which the latter refused. The plaintiff then proved that he sold a carpet and rug to the defendant for $153.59; and gave in evidence the bill and receipt as follows: “ D. H. Hoopes, To Y. Strasburger, Dr. 1867. Dec. 6, To 67|-yds.

Brussels carpeting, at $2.15 per yard....................................... 144 59 1 Rug!............................................ 9 00 $153 59 Received payment in full of the above account, by note of Brewer & Hoffaeker; I running the risk of the note being paid. V. Strasburger.” The carpeting was delivered at defendant’s dwelling. The note was not paid at maturity, and proved worth- . less; the drawers having failed several days before it became due, and left the city. Of these facts, the defendant was immediately notified, and payment of the bill demanded of him. ⁴⁰¹ Testimony was offered on the part of the plaintiff, tending to prove that the note was worthless, that the makers were insolvent at the time the note was passed, that these facts were well known to the defendant, and that he falsely and fraudulently represented the note to be good, and that it would be paid at maturity.

The defendant offered evidence contradictory of the same, and tending to prove the bona fides of the transaction on his part. If a party accept from his debtor, a note or bill of a third person, and “agree to receive it absolutely as payment, and to run the risk of its being paid,” the original debt will thereby be paid and extinguished. Glenn vs. Smith, 2 G. & J., 509 ; Berry vs. Griffin, et al., 10 Md., 27 . It is very clear therefore, that in the absence of fraud on the part of the defendant, the receipt of the plaintiff offered in evidence, would be a bar to the present action.

But the plaintiff seeks to avoid its effect, by showing that the defendant falsely and fraudulently represented that the promissory note of Brewer & Hoffacker was good and would be paid, when in fact he knew that it was worthless, and thereby induced the plaintiff to accept the note, and give the receipt. There appears to have been a conflict of testimony upon the question of fraudulent misrepresentation; but it was fairly submitted to the jury by the plaintiff’s prayer, which was granted, and was found against the defendant. We must therefore deal with the case, assuming the fraud to be established. The question for this Court to determine, is what is its legal effect upon the rights of the parties in the present suit ?

And we shall consider first the several grounds of defence presented by the defendant’s prayers, and relied on by the appellant. These resolve themselves into an objection to the form of action which rests upon the theory that the bill and receipt constitute a special con ⁴⁰² tract, whereby the plaintiff agreed to sell and deliver the goods, and receive in exchange or payment therefor, the note of Brewer & Hoffacker, that the legal effect of the agreement when executed by the delivery of the goods, and the receipt of the note, was to satisfy and extinguish the plaintiff’s demand for the price of the goods, and to destroy his right of action to recover the same in an action of assumpsit, for goods sold and delivered. That if he was induced to enter into the contract by the fraud or misrepresentations of the