Dunn v. Smith

20 Miss. 602

• Court: Mississippi Supreme Court
• Decided: January 15, 1849
• Status: Published

Opinion

Mr. Justice ThacheR

delivered the opinion of the court.

In an action upon a promissory note, one of the defendants, Rufus C. R. Petty pleaded that the note was procured to be made by him by fraud and deceit, in this, that Andrew W. Ca-perton, to whose order the note was to be paid, presented the same to him' to sign as security for its payment,, and to induce him to sign it as security, falsely represented that one Wallis Wilson would also sign it, as a co-security with him, and upon this representation he did so sign it; but that the said Wilson never did sign the note, or in any manner become liable or bound for its payment. A demurrer to this plea was sustained, which judgment is now for investigation here.

The plea presents a palpable case of misrepresentation to a surety in respect to a material part of the transaction in which he was solicited to become surety. It was the act of the payee of the note. Under such circumstances the security so given is void at law, for fraud. Graves v. Tucker, 10 S. & M. 9.

It being the act of the payee, the indorser, his fraud equally affects his indorsees, the holders and plaintiffs, who claim through him. H. & H. 373, sec. 12.

The judgment of the circuit court sustaining the demurrer was erroneous.

The judgment is reversed, the demurrer directed to be overruled, and the cause remanded for further proceedings.