Walsh v. Rogers
| Decision Date | 02 January 1884 |
| Citation | 18 N.W. 135,15 Neb. 309 |
| Parties | HOMAN J. WALSH, PLAINTIFF IN ERROR, v. SARAH ROGERS, DEFENDANT IN ERROR |
| Court | Nebraska Supreme Court |
ERROR to the district court for Lancaster county. Tried below before POUND, J. The case came before this court in 1881 being reported, 12 Neb. 28. After reversal here, and the making up of issues below, the plaintiff Rogers recovered judgment for the amount sued, and defendant Walsh brought the case up on a petition in error.
AFFIRMED.
Mason & Whedon, for plaintiff in error, cited: Chitty on Bills § 247, and cases cited. Lambert v. Heath, 15 M. & W., 486. Osborn v. Nicholson, 13 Wall. 659. Boyce v. Table, 18 Id., 548. Otis v. Cullom, 2 Otto, 427. Baxter v. Duren, 29 Me. 440. Fisher v. Pierman, 12 Ind. 497. Ferm v Harrison, 3 Tenn. R., 759. Bank of England v. Newman, 1 Lord Raymond, 442.
Walter J. Lamb, for defendant in error, cited in his former brief: 12 Neb. 28. 2 Wharton Contracts, 745. Wood v. Sheldon, 42 New Jersey Law, 423. Dumont v. Williams, 18 Ohio St. 519. Tyler v. Bailey, 71 Ill. 34. Story Contracts, § 605. Burrough's Public Securities, 512. Allison's Case, 9 Ch. App., 24.
The main question presented in this record was considered in Rogers v. Walsh & Putnam, 12 Neb. 28, 10 N.W. 467, 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 there 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 paper 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...
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