Walsh v. Rogers
| Decision Date | 02 January 1884 |
| Citation | 15 Neb. 309,18 N.W. 135 |
| Parties | WALSH v. ROGERS. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Error from Lancaster county.
Mason & Whedon, for plaintiff.
W. J. Lamb, for defendant.
The main question presented in this record was considered in Rogers v. Walsh, 12 Neb. 28, [S. C. 10 N. W. REP. 468,] when the case was before us on a demurrer to the petition. We then held that, on the facts stated, the pretended warrants were not a good consideration for the money paid for them, and that the plaintiff could recover it. Adhering as we still do to the views expressed in the opinion then given, it is hardly necessary, nor would it be profitable, to go over again the ground then occupied. All that seems necessary is to ascertain whether, in the progress of the case, anything has been disclosed to make the principle of that decision now inapplicable. Turning to the answer, we find that, in addition to a general denial of the allegations of the petition, the matters relied on as a defense are, substantially, that the plaintiff “knew all the facts in relation to said warrants,” relied on her own judgment in making the purchase, and “expressly understood and agreed that she took the said warrants, or pieces of paper, at her own risk as to validity and value.” These averments were denied by the reply, and there is no evidence to support them. Even Walsh himself, who testified, does not pretend that Mrs. Rogers agreed to take the papers at her own risk. Both parties to the transaction evidently supposed they were dealing with county warrants,--genuine obligations,--and so far as appears nothing was done to relieve Walsh & Putnam from the implied warranty of a seller of such paper. That it is, in fact, just what it purports to be. This paper was not what it purported to be. It was a nullity. In making it, the county commissioners were outside of their jurisdiction entirely. Therefore, the claim of counsel that Mrs. Rogers should not be permitted to resort to Walsh & Putnam, because she had failed to call upon the county for payment, is untenable. In this connection it is suggested that if the warrants had been presented to the county treasurer he might possibly have paid them. But this bare possibility imposed no duty on Mrs. Rogers. She was no more required to first resort to the county for the payment of these warrants before seeking a return of the consideration paid for them, than would be the purchaser of a forged promissory note to...
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