Cloud v. Whiting

38 Ala. 57

• Court: Supreme Court of Alabama
• Decided: June 15, 1861
• Status: Published

Opinion

R. W. WALKER, J.

Where the maker of a note "is inquired of by one wishing to purchase it, -whether he "has any defense against it, and answers that he has none, this estops him from afterwards setting up any defense which existed at the time, within his knowledge, but he does not thereby preclude himself from making a defense subsequently arising out of the original contract; such, for example, as a total failure of the consideration. When, however, the note is purchased by a third person on the faith of a promise by the maker to pay it, the latter is thereby estopped from setting up the invalidity of the note as between himself and the payee, whether on the ground of fraud in the original contract, not known to the maker at the time of such promise, or of subsequent failure of consideration ; and will be compelled' to pay the assignee at all events. — Clements v. Loggins, 2 Ala. 514; Maury v. Coleman, 24 Ala. 381; Lanier v. Hill, 25 Ala. 554; Drake v. Foster, 28 Ala. 654; Plant v. Vogelin, 30 Ala. 160; Powers v. Talbott, 11 Ind. 1; Rose v. Wallace, ib. 112.

..'Judgment affirmed.