Hoopes v. Strasburger

• Decision Date: 18 February 1873
• Citation: 37 Md. 390
• Parties: DAVID H. HOOPES v. VICTOR STRASBURGER.
• Court: Maryland Court of Appeals

37 Md. 390

DAVID H. HOOPES v. VICTOR STRASBURGER.

Court of Appeals of Maryland

February 18, 1873

Appeal from the Court of Common Pleas of Baltimore City.

The case is stated in the opinion of the court.

Exception.--The plaintiff prayed the court to instruct the jury:

That if they find from the evidence that the carpet and rug, as testified to, were sold and delivered by the plaintiff to the defendant at the prices named, and that the defendant paid on account thereof the sum of $3.59, and in payment of the balance delivered to the plaintiff the promissory note of Brewer & Hoffacker, offered in evidence, dated December 6th 1867, at 20 days, drawn originally to the order of blank, but having the name of plaintiff inserted therein by the defendant as payee, at or before the delivery thereof; and shall further find that the plaintiff, either placed the said note in the Howard Bank of Baltimore for collection in due course of business, or discounted the same at said bank, and that the said note was not paid at maturity, and that immediately thereupon, that is, on the same day, the plaintiff took said note from said bank and went to the place of business of said Brewer & Hoffacker, to present the same for payment, and found the said place of business closed, and found also that said Brewer & Hoffacker had, at least several days before, failed and left the city, and that immediately thereupon, on the same day, the plaintiff called upon the defendant and notified him of the non-payment of said note and of the failure of said Brewer & Hoffacker, and demanded payment of the defendant of the balance of $150, due upon the sale of said carpet and rug, and that no part of the said $150, has been paid, and that no part of said note has been paid, and that said note has been produced at this trial and tendered by plaintiff to defendant, then the plaintiff is entitled to recover; notwithstanding they may find the fact that the plaintiff agreed to accept said note absolutely as payment, and to run the risk of its collection, provided they find that the plaintiff knew nothing of the pecuniary responsibility of said Brewer & Hoffacker at the time of taking said note, and relied entirely upon the representations of the defendant in reference thereto, and that the defendant falsely represented the said note to be perfectly good, and the said Brewer & Hoffacker to be responsible for their paper and in good credit, while in fact the said Brewer & Hoffacker were not responsible for their paper nor in good credit, but were then insolvent, and that the defendant then knew that said Brewer & Hoffacker were not pecuniarily responsible nor in good credit, but were insolvent, and that his representations were false.

The defendant asked the following instructions:

1. If the jury find the making of the bill and receipt as offered in evidence by the plaintiff, without mutilation, then such bill and receipt embody the contract in writing between the parties, and it is not competent for the plaintiff to contradict or vary the terms of said contract by oral testimony; and he cannot recover under the pleadings in this case.

2. That the jury are confined, in ascertaining the contract in regard to the sale and delivery of the goods in question, to the written paper marked "A," (being the bill and receipt set out in the opinion of the court;) if the jury shall find the signature thereto signed by the plaintiff to be his genuine signature, and shall further find that said paper has not been mutilated or altered since.

3. That the plea of payment is sustained by the evidence in the cause, if the jury find that the signature of the plaintiff to the paper marked "A," was placed there at the time of the delivery of the carpet and acceptance of the note, and that such paper proved conclusively the payment and extinguishment of the original cause of action, and that the construction and effect of such paper is matter of law for the court, if the above facts are found by the jury, and establish the plea of payment.

4. That, under the pleadings in this cause, it is not competent for the jury to determine or consider whether the said defendant, in passing said note to the plaintiff, acted in good faith or not; because this form of action does not involve such question; that their verdict must be for the defendant if they find that the plaintiff accepted said note and receipted for the same in manner as shown by the paper writing marked "A," without regard to the question whether said note was of any value or not.

5. If the jury find from the evidence the sale and delivery of the goods in question, by the plaintiff to the defendant, and that it was part of said contract that the note of Brewer & Hoffacker was to be taken and received in payment therefor to the amount of said note, then the plaintiff cannot recover under the pleadings in this cause.

6. That in order to a recovery under the pleadings in this case, it was essential that the plaintiff should tender the note in question to the defendant after the discovery by him of the fraud alleged against the defendant in this case.

7. That if they find there was fraud on the part of the defendant in making the contract in this case, and that upon making discovery of such fraud the plaintiff elected to avoid such contract, and to that end made a tender of the note in question to the defendant, and manifested to the defendant at the same time his determination to avoid the contract then such contract on the part of the plaintiff rescinded the whole contract between them, and the title of the goods in question did not pass from the plaintiff to the defendant by reason of such fraud, and the plaintiff cannot recover the price of the goods under the pleadings in this case.

8. If the jury find the sale and delivery of the goods, and the taking of the note by plaintiff, as shown by the evidence; and shall further find that said note was not paid at maturity; and shall further find that the transfer of the note was fraudulently made by defendant; yet their verdict must be for the defendant in this case, unless the jury shall find that within a reasonable time after the discovery of such fraud by the plaintiff he returned said note to defendant; and as there is no evidence that he returned the note, or offered to do so, he cannot recover in this case.

9. That the tender of the note in question by the plaintiff to the defendant, at the trial table, during the progress of this trial, and the refusal of the defendant to accept the same, does not affect or change in any respect the responsibility of the defendant in this case to the plaintiff.

10. That it is not competent for the plaintiff to tender the note in question to the defendant, at the trial table, during the trial of this cause, with a view to recover upon the count for goods sold and delivered, because more than three years have elapsed since the maturity of said note, and no legal recovery thereon could now be had against the makers of said note, and the relation of the parties to such note remain as if no such tender had been made, the same having been rejected by defendant.

11. That there is no evidence in this case, that within a reasonable time after the plaintiff discovered the alleged fraud in this case, he tendered back to the defendant the note in question, and therefore the plaintiff cannot recover in this case.

12. If the jury believe from the evidence, that after the maturity of the note, and after the plaintiff discovered that the makers of said note were not responsible, and that the alleged statements of the defendant, at the time of the transaction, were not true, the said plaintiff went to the office of the defendant and offered to sell him the note for one-half its nominal value, then the plaintiff cannot set up any fraud in the original contract to defeat the plea of payment made in this case.

13. If the jury find the sale and delivery of the goods in question, and that the note was received by Strasburger, as stated in the receipt offered in evidence by him, then such note was payment pro tanto for such goods, and the plaintiff cannot recover under the pleadings in this case.

14. That the plaintiff cannot recover upon the count for goods sold and delivered in this case, because he has proved a special contract between the defendant and himself, which he is required by the rules of pleading to set out in his declaration.

15. If the jury find that the plaintiff sold and delivered the goods in question to the defendant, and upon the terms mentioned in the bill of parcels and receipt, offered in evidence by the plaintiff, then he cannot recover under the pleadings in this case.

The court (Garey, J.,) granted the prayer of the plaintiff, and rejected the prayers of the defendant; who thereupon excepted, and the verdict and judgment being against him, he appealed.

The cause was argued before Bartol, C.J., Stewart, Brent, Bowie and Robinson, JJ.

Benj. C. Barroll, for the appellant.

The contract between the plaintiff and defendant was in writing, and was contained in the bill of parcels, and the agreement set forth in the receipt annexed to it. Batturs v. Sellers, 6 H. & J. 249.

The receipt offered in evidence by the plaintiff sustained the plea of payment. Berry v. Griffith, 10 Md. 27; Md. & N.Y. Coal & Iron Co. v. Wingert, 8 Gill, 171.

If the plaintiff was defrauded as contended, then such fraud defeated and annulled (it may be) the contract made between them; and the plaintiff was entitled to reclaim his goods, or to sue in tort for the deceit. He could not sue upon the contract for "goods bargained and sold," and at the same time set up fraud to defeat it. Either the goods were "bargained and sold for the note which he...