ROBERT M. WITHERS, PLAINTIFF IN ERROR, v. WILLIAM B. GREENE

THIS cause was brought up, by writ of error, from the Circuit Court of the United States for the Southern District of Alabama. It was an action of debt brought in the District Court of the United States for the Middle District of Alabama, by May, assignee, on a single bill, under seal, for the payment of three thousand dollars, executed by R. W. Withers to A. B. Newsom, a citizen of Tennessee, and by him assigned to the plaintiff. Pending the suit May died, and Greene qualified and revived in him name as administrator. After some pleas which were withdrawn, the defendant filed the following:–– 'And for a further plea in this behalf, said defendant, by leave, &c., says, onerari non, because he says that heretofore, to wit, on the ___ day of _____, in the year 1839, said defendant, at the instance and request of one A. B. Newsom, the payee of the sealed note or writing obligatory in the plaintiff's declaration mentioned, purchased of the said Newsom two certain fillies, that is to say, one dark brown filly, said to have been foaled in the spring of the year 1835, and one sorrel filly, said to have been foaled the 22d day of June, in the year 1837, at and for a large sum of money, to wit, the sum of four thousand dollars, to be paid by the said defendant to the said Newsom; for the payment of which said sum, in part, defendant gave to the said Newsom the said sealed note or writing obligatory, in the said plaintiff'§ declaration described, and said defendant avers that said sealed note was given for and upon no other consideration whatsoever. And said defendant further avers, that the said Newsom falsely and fraudulently represented to said defendant, that the said fillies were raised by himself, and that the said fillies were sound, and that the said fillies had certain pedigrees, that is to say,–(the pedigrees are set forth in the plea, but they are here omitted,)–all which said representations as to the soundness of the said fillies, as to the fact that they were raised by the said Newsom, and as to their pedigrees, were false and untrue, and known to be false and untrue by the said Newsom, and were so made, as aforesaid, by the said Newsom to deceive and defraud the said defendant. 'And said defendant further says, that he, relying upon the said false and fraudulent representations of the said Newsom, and believing the same to be true, made the said purchase of the said fillies. And said defendant further says, that said fillies were purchased by him as aforesaid for their blood, and for the turf, and that otherwise they were wholly worthless to the said defendant. And said defendant further says, that the said Newsom was before, and at, and hath been ever since, and still is, a citizen of the State of Tennessee, residing three hundred miles or more from the residence of said defendant, who then resided, and still resides, in the County of Greene, in this State; and that said Newsom brought the said fillies from Tennessee to the residence of said defendant, in Greene County, and then sold them to said defendant as aforesaid. 'And said defendant further saith, that he did not discover the extent of the unsoundness of the said fillies until a long time after said purchase, to wit, the fall after the said purchase, when they were being trained for the turf, and that he did not learn that the pedigrees were false until a long time after said purchase, to wit, some time in the fall of 1839, or winter of the year 1839-40. 'And said defendant further saith, from the time he discovered the permanent unsoundness of the said fillies as aforesaid, and the falsity of the said pedigrees as aforesaid, he was ready, willing, and desirous to, and would have returned and delivered the said fillies to the said Newsom, if he had had an opportunity so to do, which he did not; and that from the discovery of the fraud of the said Newsom as aforesaid, up to the death of the said fillies, which happened during the winter and spring of the year 1840, he was willing and ready to deliver and return the said fillies to the said Newsom, as aforesaid. 'And said defendant further saith, that said fillies died, as aforesaid, without the fault or neglect of the said defendant or his servants; all which several matters said defendant is ready to verify. And said defendant saith, that the said sealed note or writing obligatory was obtained from him by the said Newsom by the false and fraudulent representations as aforesaid, and is therefore, fraudulent and void in law; wherefore said defendant prays judgment, whether he ought to be charged with the said debt,' &c. To this plea the plaintiff demurred, and, in May, 1843, the court sustained the demurrer, and gave judgment for the plaintiff in the sum of three thousand dollars debt, and eight hundred and eighteen dollars damages, together with costs. The defendant sued out a writ of error, and brought the case up to this court. It was argued by Mr. John Y. Mason, for the plaintiff in error, and Mr. Bayly, for the defendant in error.

The opinion of the court was delivered by: Mr. Justice Daniel delivered the opinion of the court.

Mr. Mason, for the plaintiff in error.

The facts being well pleaded, and admitted to be true, it will be insisted for the plaintiff in error, that the demurrer should not have been sustained.

The facts constituting the gist of the defence may be thus stated:––

1. The consideration of the contract on the part of Withers was four thousand dollars, of which one thousand was paid, and the single bill was given for three thousand dollars.

2. That the payee procured the contract by representations false and fraudulent, with a knowledge that they were false, and with the purpose to defraud.

3. That, the facts being falsely stated, the fillies were wholly worthless to the defendant.

4. That the fraud was not discovered until long after the sale, and no opportunity offered to return them until they were dead; and that the fillies died without fault or neglect on the part of the defendant; and on these facts the question is, Can the plaintiff enforce the contract, as to that part of the purchase money which is unpaid?

The contract was made in Alabama, and the lex loci governs.

The plea proceeds on the ground, that, as to the defendant, there was a total failure of consideration, but that, if the contract were not to be regarded as nudum pactum, there was a failure of consideration to the full amount sued for and unpaid.

The statute, to avoid circuity of action, and to promote justice, authorized a defence at law, which without it could have only been made in equity.

1. The conduct of the vendor amounted to dolum mulum ad circumveniendum, which, being proved or admitted, vitiates all contracts, both at law and in equity. Story on Contracts, § 165; Ferguson v. Carrington, 9 Barn. & Cres. 59; Fermor's case, 3 Coke's R. 77.

To deprive the defendant of the benefit of this defence, it must clearly appear that the vendee acquiesced in the contract after he discovered the fraud. The fact of such acquiescence must be determined on the circumstances of each case.

The offer to return the article purchased would show that there is no acquiescence; but the party must have reasonable time to do this act of repudiation, thereby rescinding the contract in whole. In this case it will be insisted that the fillies could not be returned or tendered after they died, and that the excuse is sufficient for not doing so before that event, and after the fraud was detected.

2. It is stated by Kent, that, 'in cases where the consideration has totally failed, the English courts have admitted that fact to constitute a good defence between the original parties to a bill of exchange, though a partial failure is no defence.' 2 Kent's Com. 473; Morgan v. Richardson, 1 Camp. N. P. 40, note; Mann v. Lent, 10 Barn. & Cress. 877. 'But with us a partial as well as total failure of consideration may be given in evidence by the maker of a note to defeat or mitigate a recovery, as the case may ...