Wiswall v. Harriman
Supreme Court of New Hampshire
Assumpsit. Facts found by a referee. In payment of a debt, tbe defendant gave the plaintiff several notes signed by others, one of which he represented and believed- to be secured by mortgage. It was not secured by mortgage, and was and is of no value. The plaintiff relied on the representation, and the mistake was material. The plaintiff rescinded his acceptance of the worthless note, but did not tender it to the defendant until the trial.
1Opinion of the CourtStanley, J.
Where there has been a common mistake as to some essential fact forming an inducement to a 'contract, that is, where the circumstances justify the inference that it would not have been made if the truth had been known, the contract is voidable. Benj. Sa. (4th Am. ed.), s. 606; Poll. Contr. 436, 442; Cox v. Prentice, 3 M. & S. 344; Emmerson’s Case, L. R. 1 Ch. 433—S. C ., L. R. 2 Eq. 391 —S. C., 12 Jur. N. S. 592; Fogg v. Sawyer, 9 N. H. 365; Nelson v. Hall, 60 N. H, 274. The plaintiff was not bound to return the good notes, as he would not have been bound to return all the money he received…
2Cases cited3 opinions
- Colby v. ReedSupreme Court of the United States · 1879
- Estabrook v. SwettMassachusetts Supreme Judicial Court · 1874
- Whitton v. MayoMassachusetts Supreme Judicial Court · 1873
3Cited by1 opinion
- Mead v. WelchSupreme Court of New Hampshire · 1892