2 Ala. 749 (Ala. 1841), Barnes v. Bailey

• Citation: 2 Ala. 749
• Opinion Judge: GOLDTHWAITE, J.
• Party Name: BARNES v. BAILEY & DE BARD.
• Attorney: BLISS, for the plaintiff in error, HAIR, contra,
• Court: Supreme Court of Alabama

Page 749

2 Ala. 749 (Ala. 1841)

BARNES

v.

BAILEY & DE BARD.

Supreme Court of Alabama

June Term, 1841

Writ of error to the Circuit of Pickens county.

ACTION of assumpsit on a promissory note. Plea puis darrien continuance, that since the last term of the Court, to writ: on the 29th August, 1840, in the county, &c., he, the defendant, paid to the said plaintiffs the full amount and interest due on the note declared on, whereupon, &c.

Issue to the country, and verdict for the plaintiffs; for which judgment was rendered.

In the progress of the trial, the defendant produced and gave in evidence a receipt in these words: "Received of John A. Barnes a bill of exchange for six hundred dollars, drawn by said Barnes, and endorsed by Thomas Amoson and Blake Little; and a note made by said Barnes, and endorsed by Amoson and Little, for three hundred and forty dollars; which bill and note are received in full payment of a note of said Barnes for eight hundred and thirty-three and sixty-six one-hundredths dollars, payable to James Daniel or order, now in suit in Pickens county, Ala., in the name of Bailey & De Bard, against said Barnes.

Signed, LEWIS BROOKS,

Agent for Bailey & De Bard."

The plaintiff then introduced evidence tending to show that said receipt was obtained by fraud and misrepsentation; thereupon the defendant introduced evidence tending to show, that his agent had proffered to the plaintiff's attorney, a return of said receipt, and a rescission of the contract of settlement shown therein, provided the bill of exchange and note, first specified in the receipt, should be given up to the defendant. But said bill of exchange and note were retained by the plaintiff's attorney, and were not produced on trial, or offered to be surrendered; nor was it shown that the same had ever been offered to be surrendered or returned to the defendant, or to be cancelled.

The defendant asked the Court to instruct the jury, that to avoid the receipt, the plaintiff must bring in and offer to return and surrender the bill of exchange and the note therein specified; or he must show that he had offered to do so at some former time. But the Court instructed the jury, that if they believed the receipt was obtained by fraud, it was void; and that it was unnecessary that the bill of exchange and note therein specified should be returned to the defendant in order to avoid the force of the receipt. To this charge, the defendant excepted.

He now prosecutes his writ of error, and assigns that this charge is erroneous.

BLISS, for the...