Boone v. Queen

3 F. Cas. 880, 2 Cranch 371

Opinion

THE COURT

(THRUSTON, Circuit Judge,

absent),

at the prayer of the plaintiff, instructed the jury, that if from the evidence they should be satisfied, that the defendant, who was in the possession of the said real estate at the time of the sale, had ever since continued in possession of the same, and enjoyed the profits thereof; and that the said E. B. C. was authorized, by the parties, to draw a bond of conveyance, on the subject of the said agreement, and that John Queen was authorized by the defendant to deliver the said note to the plaintiff upon his executing such a bond as E. B. C. should draw; and that such bond of conveyance was so drawn and executed by the plaintiff; and that the said John Queen delivered the said note to the plaintiff upon receiving the said bond, — then there is not such a failure of consideration as will prevent the plaintiff from recovering in this action. To this instruction the defendant objected, and took a bill of exceptions.

' This instruction THE COURT refused to give, but instructed the jury that if they should be satisfied by the evidence that the plaintiff fraudulently instructed E. B. C. to draw a bond differing materially from the agreement of the parties, and that the bond so drawn did so differ, and that by means of the delivery of the bond so obtained by the fraud of the plaintiff he obtained possession of the said note, the plaintiff could not recover in this action; to which refusal, the defendant took a bill of exceptions.

Verdict for the plaintiff. No writ of error.