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Art. 8.

Con.

Wharton v.

$ 7. Assumpsit. Held, though parties are reciprocally bound I. CH. 8. in a penalty in a deed to perform a contract, yet one of them may have assumpsit on a subsequent transaction distinct from the deed; as if, on a charter party, doubtfully expressed, too much freight be paid, the surplus may be recovered back in this action. I Nott & Mc Cord, 45, 63, Goddard v. Bulow. § 8. Assumpsit to recover back money paid for prime coffee, 2 Nott & Mc which turned out to be damaged. Held, the difference be- Cord, 65, 68, tween prime coffee, and that of an inferior quality, could be O'Hara. recovered. 2. An action for money had and received, lies not to recover back the purchase money, when the property proves to be unsound, unless there has been a return or tender of it, or unless the consideration has wholly failed. 3. The plt. advertised as prime and represented it as such at the sale (auction). If damaged, he is liable for the deficiency to the buyer, though the seller expose the bags containing it, which the buyers have examined. A sample was shown, at the time of the sale, which was sound and good. See ch. 62. a. 1. 13. Vol. 2.

101, Wilson v. Spencer.

§ 1. Con. In pari delicto. Spencer brought an action ART. 10. against Wilson and Neal, in a county court, on a note under Con. seal, given for the bills of a bank forbidden by statute. Defts. 1 Rand. 76, filed two pleas, specially stating the fact, and that the note was given to the president of an unchartered bank, so forbidden. To these pleas there was a general demurrer. Held: 1. A court of equity, as well as of law will prohibit the effects of contracts violating statutes enacted for the public good. 2. The principle in pari delicto does not apply to cases in which the acts are forbidden by positive statute law. 3. Persons taking such notes in payment may not be as culpable as the bank that issues them. 4. These principles apply as well to contracts prohibited under penalties, as to those expressly declared void by statutes. The county court gave judgment for the plt. So did the superior court: revised in the supreme court of appeals. Cited to show the note was void, Carth. 252; 1 Taun. 136; 1. Pow. on Con. 196, 199; 3 D. & E. 17, 454; 4 D. & E. 456; 5 D. & E. 599, 242; 5 Johns. 320; 4 Bos. & P. 264, 552; 11 East, 501; 3 Bos. & P. 38; 3 P. Wms. 391; Talbot, 140. So far the parties seemed to agree, but differed in the construction of three Virginia statutes on the subject.

But parol evidence admitted to impeach evidence under 4 Rand. 368– seal, on the ground of fraud, in pari delicto does not apply when 383.the policy of the law requires that a fraudulent or vicious conveyance be enforced. Hence, where a debtor makes a fraudulent conveyance of his property, to keep it from his creditors, the fraudulent grantee, though particeps criminis, may enforce such conveyance in a court of law, and the debtor will not be allowed to defeat the claim by proving the fraud. See Austin

I. CH. 9.
Art. 8.

Con.

ART. 11.
Con.

ART. 14.
Con.

2 Greenl. 390

v. Winston, ch. 226. a. 18. s. 1. where a particeps criminis was relieved, but was a special case: generally, not relieved. Hawes v. Leader, Cro. Jam. 270, 271, the goods sold remained with the grantor, meaning to defraud his creditor, but was obliged to give them up to the buyer, for between him and the seller the sale and deed were valid. Same case, Yelv. 196; see ch. 32. a. 1. s. 9 ; ch. 226. a. 18. s. 1; Collins v. Blantern, ch. 144. a. 3. s. 15; 12 John. 306; 19 ld. 311.

$5. Con. The rule 8 Wheat. is, that it seems that a court of equity will relieve in a case of mistake of the law merely; but Eden, 7, 8, 9, after citing several cases, says, p. 8, we may now consider the maxim ignorantia juris non excusat as fully recognised in equity, as it has long been unquestionably established in civil cases at law. So seems to be the case in New York. 1 Johns. Ch. R. 516; 2 do. 51, 60, Lyon v. Richmond; 6 Johns. Ch. R. 166, Stors v. Barker.

If A gets my property and sells it, I may have assumpsit for the proceeds. 4 Pick. 449, 453; see art. 9. s. 1.

§4. Con. Similar principle, 1 Greenl. 352, 361, Lloyd v. Jewell & al. Many good reasons cited supported by many cases, and only Frisbie v. Hoffnagle, 11 John. 50, to the contrary.

Assumpsit on two notes given for land conveyed by quit392, Howard claim deed, by the plt. to the deft. without covenant. It is no

v. Whitman & al.

3 Pick. 207

212, Mills v. Wyman.

ART. 15.
Con.

v. Gould.

good defence, the plt. represented his estate to be in fee simple, when in fact it was only for life or years. There is no defence to such action but a total want of title. But 1 Mc Cord, 470, held, in assumpsit, on a promissory note, the deft., under the general issue, may prove it was given for the price of a tract of land, the boundaries of which were fraudulently represented by the vendor.

$9. Con. This position is limited to the cases in which a good or valuable consideration once existed. Assumpsit for the board, &c. of a sick and poor son, who had ceased to be one of his father's family; here is no ground for his express promise in a letter to pay the bill.

1. Con. At the deft's. request A signed a negotiable note to the plt., and he endorsed it, to be discounted at a bank, for 4 Pick. 444- the deft's. use, who promised to indemnify the plt. and the deft. 448, Cornwall received the money at the bank. Afterwards the plt. took up the note, by giving a negotiable note signed by himself, and endorsed by B. Held, 1. The plt's. claim was only against the deft. 2. Giving the new note was equivalent to payment of the first; so supported the plt's. action for money paid. 3. After verdict too late to object, the plt. paid the note without being duly notified as endorser. 4. Taking collateral security for indemnity did not prevent the plt. from resorting to an im

plied promise, unless agreed he should confine himself to that security. 5. If the endorser of the second note should be compelled to pay it, he would have no demand on the deft. not appearing he endorsed it at the deft's. request.

I. CH. 9.

Art. 15.

Con.

§ 5. Čon. Implied ratification by the principal of the agent's acts, extends only to such of them as the principal knows at ART. 18. the time. 3 Greenl. 429, 432, Thorndike v. Godfrey. Wil- Con. les, 105.

Olney v.

And generally where a public office is created by statute, there is incident to the office an implied power to bring all suits which a proper discharge of his official duties require; as overseers of the poor, &c. 2. When a public agent or officer apparently acts in the line of his official duty, his contracts are public and not personal. 3. When the transactions show the promise or engagement to be on public account, the agent or officer need not expressly say he acts in his public character or official capacity in order to avoid his personal liability. A mer- Weekes, 18 chant's clerk employed in his store has no power to order his Johns. R. 122. goods to be delivered to his creditor whose debt is not due. -363, Beals v. The clerk's power was to keep hooks and sell goods by retail. 15 Johns. R. 1. The agent who buys goods is not liable when he discloses his principal's name at the time. Principal is bound when the agent acts within the scope of his authority. If I give an P. 44. agent a receipt for money by mistake, the principal is not liable, unless I give him notice of it, before he settles with his P. 276. agent.

Allen.

Trustees of

The rights of the agent: where he acts fairly and without fault in his principal's service, he is subject to no expense by Powell v. suit or otherwise, the law implies his promise to indemnify and Newburgh, to reimburse his expenses. The agents were trustees of a 19 Johns. R.

corporation.

284.

Johns. R. 46.

--

The deft., a captain in the United States' navy, in the war of Bronson v. 1812, employed the plt's. vessel in transporting military stores, Woolsey, 17 and directed her to be sunk to prevent her capture by the ene- 12 do. 385.my. Held, the deft. was not liable to the plt. Public officer is Walker v. liable on his express promise. If in his public capacity he em- Swartwout, 12 ploys A to work on account of the government, he is not personally liable for the wages.

do. 444.

305-308,

$9. Con. If a promissory note be made to the agent or 2 Greenl. treasurer of a private association, by his name, with the addition Clap v. Day. of his agency or office, he may sue in his own name, on the note, the addition of his character being but descriptio persona.

§ 14. A gets possession of B's funds, though lawfully, and with 1 Const. R. them buys up B's notes when he is insolvent, at discount, yet 244. A is entitled to no more than he actually paid for them, and B may give evidence to show at what rates they were purchased.

For when an agent buys up the paper of his principal with his 1 Cons. R. 251.

I. CH. 9.
Art. 18.
Con.

1 Har. and M'H. 173.

1 Greenl. 343, 347.

2 Greenl. 358-361.

Stetson v.
Patten & al.

2 N. H. R. 352, 358,

funds, he shall not profit by it; where from a course of business,
the jury will presume an agency.
Cro. El. 878.

Where A acts as attorney to B, the contract must run thus; B by A his attorney, doth bargain, &c. &c. Same principle, 16 Mass. R. 42-47, Elwell v. Shaw. In this case the attorney recited his power in the deed he gave, and then added, Know all men, &c. that I, the said Joshua [attorney], by virtue of the power, &c., in consideration of $200 paid me by, &c., do hereby bargain, grant, &c., and I do covenant, &c.; I am duly empowered, &c. In witness, &c., I have set the name and seal of the said Jonathan [the principal]; signed Joshua Elwell and a seal. Executed badly; should be Jonathan Elwell, by Joshua Elwell, his attorney, doth bargain, &c.; same principle, 1 Greenl. 231, 238, Stinchfield v. Little; 1 Greenl. 339-343, Elwell v. Shaw. See ch. 15, a. 4, s. 15.

An attorney authorized by parol, executes a bond in his principal's name, and afterwards he is duly constituted by letter of attorney, dated before the bond; this is a subsequent ratification, and makes the bond valid.

§ 18. Covenant on a deed. Held, one made by an attorney or agent, not authorized under seal to bind his principal, is not made valid by a parol ratification. 2. In such case, if the agent made the deed in his principal's name, he not being held, it does not follow the agent is bound by the deed unless it contains apt words for that purpose. See Hosier v. Searle, ch. 177, a. 8, s. 4; same subject, 3 Greenl. 380-388, Thorndike v. Barrett; 5 Barn. & Cres. 355.

19. An agent of a corporation is liable on a written promise not sealed, if he make it without authority; 2. And an agent may sue in his own name, on a contract with him, if interested in it, or is answerable over in consequence of it; 3. Is liable in all cases on his contract, unless the principal is disclosed, and he is then liable if the credit appear to have been given to him personally, or if he exceeded his authority. Two selectmen of the Underhill & al. town, for the value of certain relief furnished by the town of v. Gibson & al. Chester to paupers settled in Rumney. The action was founded on a letter written by the defts. to the plts., selectmen of Chester, as to a matter between the two towns; no vote of Rumney in the case; was an action at common law against the defts. Their letter show it was an affair of their town. The consideration seems to be the plt's. delay at the deft's. request. Judgment for the plts.; numerous cases cited. Further, the deft's. letter purported to be their own promise to the plts. themselves.

Perkins appt.

20. One may become the agent of a corporation in the v. The Wash- same manner as he may of an individual, without any deed or of N. Y. City, Writing. Appeal from chancery. The company appointed 4 Cowen, 445 Henry P. Russell, of Savannah, a surveyor, and empowered

ington Ins. Co.

him to make contracts of insurance (against fire) to take effect from the time the premium should be paid, and should be received at New York, provided the office should recognise the rate of premium, and be otherwise satisfied with the risk. R. advertised at Savannah the terms on which the company would insure, and subscribed as its agent at S., stating it would insure him, &c. Perkins paid the usual premium of insurance on certain goods, Jan. 5, 1820, to R., who gave P. a receipt for the money, describing himself as agent of the company, and specifying the consideration and objects of the receipt; but before the premium was received at New York the goods were burnt. P. afterwards tendered the premium to the company, and demanded to be indemnified or to have the insurance executed. Held, they were bound. Decree for him unanimous on reversing the chancellor's decree, premium being as usual. Kent was the chancellor; cited 19 Johns. 60, 15, do. 44; 7 Cran. 297; 15 East. 400.

withperson

I. CH. 9.

Art. 20.

125.

Con.

1 Con. Defts. promise to satisfy a lien on a vessel belong- ART. 20. ing to a third person, ready for sea, in consideration the plt. Con. would allow her to sail, is not within the statute of frauds; but 1 Nott and an agreement in writing to pay the debt of a third M'Cord, 124out any consideration being expressed, is void by it. The deft. having received goods to pay A's debt, promised 1 M'Cord, 486. B, about to attach A's property in the deft's. hands on A's note to B, that if B would wait till the fall, he, the deft., would pay the note. Held, a good promise not within the statute. See other cases, 1 Nott and M'Cord, 563; 2 do. 370, &c.; 1 M'Cord, 100, 395, 425, 575.

But Boyce v. Owens, a garnishee promised the plt. in an 2 M'Cord, 208. atttachment, that if he would discontinue it and wait for some months, he, the garnishee, would pay the deft. in the attachment. Held, this promise was void, it not being in writing.

$5 Con. A deposited in B's hands money and goods to a certain amount, on an agreement B should pay a certain note endorsed by C for his accommodation, and indemnify C against the note. Held, B's agreement was an original undertaking. Olmstead v. Greenly, 18 Johns. R. 12; other cases, 17 Johns. R. 113, 114; 15 do. 425; 18 do. 58, 515; 20 do. 338.

I do promise to pay the amount aforesaid, if C. S. should 2 South. 570. not pay it in six months. Adjudged a valid promise.

229-239, Colt v. Root.

35. Held, D, a member of a manufacturing corporation, 17 Mass. R. so in certain events liable for its debts, in consideration B, the holder of a promissory note of the corporation, would deposit it in his hands till D should take up another note B made to C, and with the proceeds of it pay the note first mentioned; promised B to save him harmless from his said note to C. Held, this promise of D need not be in writing by the statute

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