Prettyman v. Short

5 Del. 360

• Court: Superior Court of Delaware
• Decided: July 5, 1852
• Status: Published

Opinion

The Chief Justice

charged:—1. That on the assignment of a note, as the price of goods, the law imposes on the assignee the use of due diligence and proper means to collect it, or the assignor will not be liable over; and in case of an assignment without recourse, there is no liability over for failure to collect the note, unless there was fraud or misrepresentation in making the assignment.

2. If this note was assigned in payment for the horse, though without recourse, the assignor would still be liable, if he fraudulently induced the assignment by representing it to be a good note, when he knew it to have been procured by fraud and deceit.

Mr. Cullen, for plaintiff. Messrs. Layton and Saulsbury, for defendant.

3. That the question of the fraudulent character of the note assigned, was closed by the judgment of the justice below; and being the judgment of a court of competent jurisdiction, it cannot be questioned here.

4. That though an assignee is bound to use due diligence and proper means to recover on the instrument assigned, he is not bound after a full trial and judgment in one court" having jurisdiction, to appeal to another.

5. That if this note was represented by Aaron W. Prettyman to Mr. Short, to be a good and valid one, when it was in fact fraudulently obtained by him, that the fraud made him liable to pay the price of the horse, and plaintiff ought to recover.

Verdict for plaintiff.