Bigler v. Flickinger

The opinion of the court was delivered, July 3d 1867, by

Thompson, J.

— What the witness, Bowman, said on cross-examination, about the contents of certain letters written by him to the plaintiff, does not appear on the paper-books, but the learned judge, in his note, made on ruling against the offer of the letters, said they did not contradict the oral statements of the witness, and that he had admitted all that was contained in them, so far as the counsel had read the con^pnts to him. In the absence of the testimony on the cross-examination, we must take this to have been the true state of the case; if so, it is manifest no contradiction would have been established by the letters, if admitted, and they were properly excluded. Consequently this error is not sustained.

We regret to be obliged to disapprove of the assignments of errors upon the answers of the court to the points. In § 7 of Art. IX. of the rules of this court, p. 319, Wright’s Index, it is provided that “ when the error assigned is to the charge of the court, the part of the charge referred to must be quoted totidem verbis in the specification.” So the points upon which error is assigned must be set forth as written, and not in- substance. These rules have been ignored, to a great extent, in this case, and we might dispose of it without further notice. We have, however, in order that no injustice might ensue to the party, overlooked the irregularity, and examined the complaints of error, hut without finding any good cause for them.

The defence to the plaintiff’s claim to recover, was failure of consideration, misrepresentation, fraud and duress. All this was matter for the jury, and, unless we are bound to say that no fraud can be committed in vending patent rights, there was no error in receiving the testimony to prove it, or in the manner in which it was submitted by the learned judge to the jury. The representation of what the churn would do proved utterly false; and although this was not a warranty in itself, yet it was for the jury to say, under all the circumstances, whether it was not a false representation, knowingly and fraudulently made. The parties were not in a position of perfect equality to judge of the article, and hence the representations of the seller, if falsely made, would avoid the contract. The jury found the falsity of the representations, and the worthlessness of the article, and this established a good defence.

There were circumstances enough given in evidence by the defence, to have required the plaintiff to have disclosed, if he could, that he was an assignee for value, of the single bill which was the consideration for the note in suit, and although he had notice that he would be called on to show this, he did not attempt it. I do not think, however, that this was a case requiring notice to prove the bona fides of the transaction. Supposing, however, that it was not, yet the answer of the court to the point claiming it to be so, was not erroneous. It was, that if the first note (single bill) was fraudulently obtained by the obligee, and passed to the plaintiff, and became the consideration for the new note, and the plaintiff failed to show that he paid anything for the original note, he could not recover. Whether he paid for the original note or single bill any consideration or not, it was void if a fraud. If he paid nothing for it, however, that circumstance would be very conclusive evidence that he could not recover, as there could be no property in what he paid nothing for, and it would remain the property of the original party.' That the note in suit was drawn payable to John A. Bigler & Co. was no reason for the notice to prove a consideration, for it very clearly appeared that John Bigler, the plaintiff, was John A. Bigler & Co.

The whole circumstances of the case evince circumvention and fraud, and notwithstanding this appeared, the learned judge below administered the law of the case with commendable moderation and entire fairness, and the jury were in no wise misled into finding the verdict they did.

Judgment affirmed.