Alexander v. Dennis

9 Port. 174

• Court: Supreme Court of Alabama
• Decided: January 15, 1839
• Status: Published

Opinion

ORMOND, J.

The question presented in this case is', whether a person who gets possession of the property of another, by falsely and fraudulently representing to him that a promissory note, which was given in exchange for the property, was good, and would be paid, when in fact he knew that it was worthless — is entitled to notice of the non-payment of the note. If he be entitled to notice of ti e dishonor of the note, it must be on the ground, that the contract, though tainted' with fraud on his part, is binding on his victim. But we are clear that the fraud vitiated the contract, and that the defendant in error had the right to rescind it, or rather to treat it as nullity, and bring his action of trover for the mules, or as in this case, an action for the deceit, where the measure of damages would be the injury he had sustained by the fraudulent conduct of the defendant in error.

It follows, that he was under no necessity to give notice of the non-payment of the note. The necessity so to do could only result from a contract, express or implied — (See Read vs. Hutchinson, 3 Campbell’s N. P. 352.)

We express no opinion as to the rights or obligations of the parties, had the contract been valid.

The judgment is affirmed.