Magoffin v. Muldrow , 12 Mo. 512 ( 1849 )

Judge Ryland

delivered the opinion of the court:

The plaintiff, Magoffin, sued Muldrow in assumpsit, for money had and received-, for money paid, laid out and expended &c., for money lent &c., and for interest.

The defendant filed non-assumpsit and set-off.

On the trial of the case the plaintiff offered in evidence an article of copartnership between himself and the defendant, under their hands and seals, stating that it had been obtained by fraud, and tWt be intended to prove that large sums of money had been paid by him to Muldrow upon this article. The plaintiff then offered evidence to show the ■fraud of Muldrow in obtaining the article, and to show large sums of money advanced to him by plaintiff under the 'article of copartnership.

The court rejected all the evidence offered by plaintiff, after the article of copartnership was exhibited, thereby preventing his proof of fraud, and also preventing the proof of the payment of large sums of money under the article by plaintiff to defendant.

The plaintiff excepted to the opinion of the court, in rejecting the testimony, took a non suit, and then moved to set the non suit aside ; which motion was overruled—excepted to, and the plaintiff now brings the cause here by writ of error.

I am of the opinion that the court below erred in refusing to admit testimony to show the fraud and the payment of money under this article of copartnership.

Fraud vitiates the contract, and if the article was obtained by fraudulent representations—and money paid thereon by means of such fraudulent acts on the part of the defendant; I hold it clear that the plaintiff had an undoubted right to treat this article of copartnership as a nullity, as an act arising íc ex dolo el malo” and to sue in this form of action to recover the money paid by him to defendant, under this fraudulent article. The court then erred in not permitting the plaintiff 5s proof as offered 3 and its judgment is reversed—cause remanded, with directions to set aside the non suit, with leave to plaintiff to proceed with his action.