Cushman v. Marshall , 21 Me. 122 ( 1842 )

The opinion of the Court was afterwards drawn up by

Tenney J.

— This is an action of assumpsit. The writ originally contained two counts, one as upon an indorsed note against the defendant as indorser, and the other for money had and received. The plaintiff abandoned the first, and under the other sought to recover the amount paid the defendant for the note, on the ground, that the same was originally obtained of the makers, by misrepresentation and fraud, which were known to the defendant; and therefore the plaintiff received no consideration for the sum, which he parted with in the purchase of the note.

Can this action be maintained ? The plaintiff still holds the note and has made no offer to give it up to the defendant. It is indorsed in blank by the payee without date and there is nothing in the case to show that it was not negotiated at the time it was made. Whether it came into the hands of the one to whom it was negotiated bona fide, and in the due course of business, unaccompanied with. any circumstances calculated to awaken suspicion, was not a question made at the trial. It does not appear that the plaintiff had reason to suspect any want of consideration in the note. He it seems relied upon the makers, and also upon the defendant, as he took his indorsement, which was unnecessary, if he did not intend to hold him. The note may still be recovered of the makers; and it is not seen how a judgment in this action will defeat it. The defendant is liable by virtue of his indorsement, unless the plaintiff by his own laches released him. Colt v. Barnard, 18 Pick. 260. Every indorsement is a new contract, unless it Ire qualified, which renders liable him who makes it.

The means of resorting to all the parties to the note the .plaintiff retains in his own hands. He seeks to recover back the consideration paid therefor, where he still has, subject to his own control, what was passed to him as an equivalent. It is not a case where there has been a partial failure of consideration by means of fraud, and the claim is for the loss sustained by the difference between the real value of the article purchased, and what it was fraudulently represented to be. The attempt is to rescind the contract as being destitute of consideration entirely. Before the suit can be maintained, we think, there should have been an offer to surrender the note to the defendant, and thereby release him from his liability on the indorsement, and restore to him, what he may make available. Thurston v. Blanchard, 22 Pick. 18 : Ayers & al. v. Hewett. 19 Maine R. 281. Other important questions are presented in the exceptions, which we consider it unnecessary to discuss.

Exceptions are sustained.