Rogers v. Walsh , 12 Neb. 28 ( 1881 )

Lake, J.

The warrants in question having been issued by the commissioners of York county without authority of law, were void. We have presented to us,, therefore, the single question, whether, under the circumstances of their sale, they were a good consideration for the money which the plantiff paid for them.

It is averred in the petition that at. the time of this purchase, and the payment of the money, there were genuine valid county warrants in the market where these were bought, and that the plaintiff supposed those in question to be such, until long after she received them. Indeed, from the facts alleged, there can be no doubt that the purchase was made with the full belief on her part, and probably on the part of the defendants, that what was obtained by it were the genuine warrants of York county. Such being the case, but for the seeming confidence of the defendants’ counsel in the strength of their position, we would not suppose a doubt could have existed that there was an entire want of consideration for the payment of the money, and that the plaintiff was entitled to a return of the price paid for what had proved to be wholly worthless.

The defense here made rests chiefly upon the authority of two cases cited, one English and the other American, viz. Lambert v. Heath, 15 M. & W., 484, and Otis v. Cullum, 2 Otto, 447. But the facts of those cases were so different in character from those of the one at bar, that the governing principle in them is inapplicable here. In those cases the purchasers actually obtained just what they had contracted to buy, and the decisions were put upon that ground alone, there being no express warranty. Here, however, the purchase was of the warrants of York county, while in fact what were received as such were not the warrants of that county at all, but only things in their similitude. Having been issued by the commissioners without authority of law, they can no more be considered the obligations of that county, than if signed by any other of her citizens. They are merely valueless pieces of paper, resembling York county warrants-, nothing more.

The principle that should govern here, was applied in the case of Young v. Cole, reported in 32 Eng. Com. Law, 334, and cited in Benj. on Sales, Sec. 607. The sale there considered was of certain Guatemala bonds, which, because unstamped, had been repudiated by the government of that state, and were therefore valueless, of which facts both seller and purchaser were at the time ignorant, and it was held that the defendant should restore the price he had received. In commenting upon the facts of that case Tindal, C. J., said, that the contract was for real Guatemala bonds, and the question was not one of warranty, but whether the defendant had not delivered something which, though resembling the article contracted to be sold, was of no value.

On the facts alleged in the petition we are of opinion that the pretended warrants were not a valid consideration for the price paid therefor, and that the plaintiff should recover. The judgment is therefore reversed, and the cause remanded to the court below for further pro■ceedings.

Reversed and Remanded.