Armstrong v. Tuffts , 6 Barb. 432 ( 1849 )

By the Court, Edwards, J.

It appears by the bill of exceptions, that the plaintiffs received the promissory notes of two of the defendants, after the discovery of the fraud alledged to have been committed by them. This, it is contended, was a waiver of the plaintiffs’ right to recover for the fraud. The answer to this is, that no such ground was taken at the trial, and no such question is raised by the bill of exceptions. Before the .plaintiffs rested their case, the notes given by the defendants were read in evidence by the plaintiffs’ counsel, who offered to cancel them, or to surrender them to the parties who had signed them. Afjfer' this offer the defendants’ counsel moved for a nonsuit, on gfpund that the notes should have been surrendered, or can-celled, or offered to be surrendered or cancelled, before the suit was brought. The circuit judge denied the motion for a non-suit, and the defendants’ counsel excepted.

As the notes which had been given were those of parties defendants in the suit, the offer to surrender, or cancel them on the trial, was sufficient. This is the rule which was laid down in Thurston v. Blanchard, (22 Pick. 18,) and which has generally been followed in this state.

The next question which was made arises on the judge’s charge. He stated to the jury that it was submitted to them, upon the evidence in the case, to determine whether the representations alledged had been made, and whether, if made, they were false, and if false, whether they were made with intent to defraud and deceive the plaintiffs. To this the counsel for the defendants excepted. The ground taken upon the argument, in support of this exception, was that the representations charged to have been made were of such a character that it was necessary not only that they should have been false, but that the defendants should have known them to be so.

Admitting, for the purposes of this case, that such is the law, the defendants’ exception must fail. The judge submitted it to the jury to determine not only whether false representations bad been made, but whether they had been made with an intent to deceive and defraud the plaintiffs. It would be impossible for a jury to find that a party had made a false representation, with an intent to deceive and defraud, without coming to the conclusion that he knew, or believed the representations to be false. Although the judge did not charge in hcec verba that a scienter was necessary, yet such is the clear intent and meaning of the language used by him, and it must have been so understood at the time.

The motion for a new trial must be denied, with costs.