Wagner v. Freschl , 1876 N.H. LEXIS 174 ( 1876 )

FROM HILLSBOROUGH CIRCUIT COURT. The instructions requested by the defendant were well enough, so far as they went, if there were any facts appearing in evidence to which they were applicable. Nothing appears the case to show that the plaintiff was put upon inquiry. It is expressly found that he had no knowledge of the arrangement between the defendant and his partner that neither was to give a note of the firm without the consent of the other. The case does find that in May, 1874, Gustav was indebted to the plaintiff for the use of his billiard tables and other things; but how it was at the time the note was given, December 10, 1873, or previously, is not found, nor are any facts stated from which it can be inferred.

No exception was taken to the instructions given, and I do not see but what they cover the whole ground. Hayward v. French, 12 Gray 453. The instruction that "the defendant would be liable, unless the plaintiff had notice, or knowledge, or sufficient means of knowledge, of the intended fraud," was, in effect, the same that the defendant requested. It was effect, instructing the jury that if the plaintiff knew that Gustav borrowed this money for his own private use, or had such notice from an the facts and circumstances as to put him upon inquiry, he could not recover.