Bliss v. Rollins

The court will no t set aside a report of referees for a mistake in law, unless it appears that they imeuded to follow the law. "When a person requests another to purchase a note against himself, and after the purchase, promises to pay the contents to tho purchaser, he cannot set up the want of consideration as a defence in an action on the note brought by the purchaser.

This was an action upon a promissory note, dated November 3d, 1831, payable in six months to Benjamin Bishop, Jr. or bearer, originally commenced before a justice, and brought by appeal to the county court, by whom it was, by consent of parties, referred to the determination of referees, who reported in favor of the plaintiff’s recovery of the amount of the note. The defendant made exceptions to the report, which were overruled, the report accepted, and upon exceptions filed and allowed to this decision of the court, the cause comes here for further adjudication. The following special statement of facts in substance, was made by the referees; — That on the evening of the day when the note was given, the payor and payee of the same came together at the tavern of one Nichols, and exchanged horses;— Rollins to give Bush 35 dollars to boot, of which the note declared on was then and there given as a part. — That at the time of the execution of the note, in answer to an observation of Rollins that 35 dollars was a great price for a horse unless sound, Bush replied, that the horse was sound, and that he would warrant him sound. (This was about ten o’clock, 3?. M.) The same evening Rollins met Bliss, the plaintiff, and offered to sell him the horse he had of Bush: Bliss examined the horse, and told Rollins he was lame in the presence of Bliss: Rollins replied, if Bush had put upon him an unsound horse, he would sue him. Bush then said he would pay Rollins’ bill rather than have difficulty, if he would rescind the trade. Rollins then requested Bliss to purchase the note of Bush, as hé was not acquainted with him, and that he would pay him.— Bliss purchased the note of Bush, and next morning informed Rollins (who remained through the night at the tavern aforesaid) of the same, who replied, that he would pay it, and requested Rollins to go home with him and he would turn him .out a pair of steers. The referees further reported, that Rollins was in some degree intoxicated in the evening, and next morning after breakfast that Rollins said to Bliss and others-,he would never- pay the note — that the horse was lame with a ring-bone, which was perfectly apparent, and has been lame ever since, and that the horse is worth 25 dollars less for suoh lameness; and that Bush, at the time of trial was, and is still, poor. insisted, 1st, It appears by the facts found by the referees, that the note in question is void for want of consideration. The facts set forth in the report show that the note was given for boot between horses; and that the horse, Bush, the original payee of the note, let the defendant have, was unsound.' — Sill vs. Rood, 15 John. R. 230. — Bliss vs. Negus, 8 Mass. R. 46. — 2 Stark. Ev. 280, note 1. 2d. The note is void, because it appears the defendant was intoxicated when the note was given. — See 2d vol. Aikens’ Reports, 167. Bliss, die present plaintiff, cannot claim to stand in a better situation in law, than Bush. — See Stat. 144. Again: The plaintiff has not set up any special promise to himself from Rollins. Again : When Rollins requested Bliss to purchase, and promised to pay the note, he was intoxicated. And further: When Rollins, immediately after breakfast, found the horse was lame, he notified plaintiff he should not pay the note. It appears also from the report, plaintiff knew of the cheat before he purchased the note; — therefore, he bought it at his peril. — 1. There is no evidence of a warranty in this case, from the report of the referees, previous to, or at the time of the bargain. 2. If there had been an express warranty by Bush to Rollins, or fraud on the part of Bush, still Rollins, by his request to Bliss to purchase the note, and his promise to pay, waived the benefit of it. 3. The report of the referees shows that Rollins was, to some degree, intoxicated in the evening, and next morning after breakfast. It by no means follows from this, that Rollins was intoxicated when he entered into the contract, or at- the time of his promise to pay Bliss the note in consideration that he would purchase it. A party cannot avoid his own contract on account oí partial intoxication. He must in any event be deprived of his reasoning powers, so that 'he could not possibly have any agreeing or disagreeing mind. — 2 Aik. 167.