McDonald v. Trafton , 15 Me. 225 ( 1839 )

After a continuance, the opinion of the Court was drawn up by

Shepley J.

The plaintiff in this case is in no better condition, than the payee of the note. Does the case prove such fraud in the payee as to prevent a recovery by him? And was the Judge in error in instructing the jury, that such fraud was not proved ? There is no evidence tending to prove, that the payee knew, that his representations were not true. And the counsel for the defendant contend, that such proof is not necessary to avoid the note. Fraud in such cases consists in an intention to deceive. Where the evidence does not prove, that the parly making the representation knew it to be untrue, the fraud can be established only by proof of a design to deceive by making statements of which the party knows nothing, and that the other was thereby deceived and injured. And such design must be proved by other evidence, than the mere fact, that the representation was not true. Early v. Garrett, 9 B. & C. 928; Herrick v. Kingsley, 3 Fairf. 278.

It is also insisted, that the evidence should have been submitted to the consideration of the jury. Fraud, being a question of intention usually, is in such cases for the jury. It must always necessarily be a question of fact fop the jury, where the law aííbrds no general rule or principle, by which the court can be guided ; for a court cannot in the absence of legal rules, as a jury can, draw conclusions from the ordinary rules of honest and fair dealing.

It might have been more regular to have informed the jury, what the law required to be proved to avoid the note, and to have called their attention to the testimony, by which they would have perceived, that the fraud was not proved ; but as it appears from the testimony reported, that the jury would not have been authorized to find a verdict for the defendant, there is no reason for setting it aside. Young v. Covell, 8 Johns. R. 23.

Exceptions overruled.