Brady v. McKee & Roberts

By the Court.

Lumpkin, J.,

delivering the opinion.

If this case rested upon the evidence alone, we should not disturb the verdict and judgment. But there are, in our judgment, errors in law, in this case, which ought to be corrected before a just result can be arrived at.

We think the Court should have given to the jury the instructions asked for in the first request, without qualification. The request was, that McKee and Eoberts having taken the note of Livingston in payment of the carriages and harness, it was prima facie evidence that he gave credit to them and looked to them for payment.

The Court, in response, said, “yes, provided the note is absolute upon its face, and there is nothing further to be done by the parties.” Now, there is, it is true, a stipulation upon the face of the Livingston note, but what is it ? Why, that Livingston should have the privilege of substituting Dr. Wardlaw’s note in the place of his. What has Brady to do with this? and how does it interfere with the presumption of law, suggested in the request ?

The first charge given, as well as the first request refused, except with a qualification, is erroneous, namely, that “ payment by a promissory note on an insolvent person, is no pay- ' ment at all.” Mr. Brady did not purchase and pay for the property with Livingston’s note; on the contrary, Livingston paid for the articles bought with his own note, and whether it be good or bad, what has Brady to do with that?

The truth is, Brady, if liable at all, is liable upon the ground of fraud, and not upon the contract. To treat Livingston’s contract as Brady’s contract, is a total perversion of the proof, as well as a misconception of the only remedy against him.

Under the present form of proceeding, we think it unnecessary to enter upon an examination of the testimony.