Wenzel v. Shulz

Paterson, J. On January 26, 1888, plaintiff and defendant, IT. C. Shulz, who had prior and up to that time been engaged jointly in certain mining enterprises, met and adjusted their accounts. Plaintiff asserted that the sum of $3,920.67 was due to him, and wanted a note payable one day after date. Defendants were unwilling to give a note payable in so short a time, but, relying on his statement, executed and delivered to him their promissory note for the sum claimed, payable in six months [223]after date. Immediately thereafter the plaintiff took this note to an attorney to see what could be done to secure the payment thereof, and was informed that nothing could be done to secure its payment, as it was not payable until six months after date. Two days later plaintiff went to the residence of defendants and stated to them that he had made a mistake in computing the amount due from them; that the note called for $50 more than he was entitled to, and he presented to them a new note, which he said was for $3,870.67, but he said that in all other respects it was the same as the note delivered on the twenty-sixth instant. Defendant H. C. suggested that a payment of fifty dollars be indorsed on the original note, but plaintiff insisted upon a new note. The defendant Mary,—wife of H. 0.,—who was busy with her household affairs, requested the plaintiff to leave the note with her for a few hours that she might read it before signing it. The court finds “that neither of the defendants knew whether a mistake had been made in the note of January 26th, or not; that the defendant H. C. Shulz was not able to read the said new note, and that the defendant Mary Shulz had bread baking, and told the plaintiff that she had not a moment’s time, and asked him to leave the note with her for a couple of hours, until she had time to read and sign it; that the plaintiff insisted upon an immediate execution of the note, and repeatedly declared to the defendants that it was just the same as the other note, excepting the difference of fifty dollars in its principal sum, and showed defendant Mary Shulz the difference in the principal sum; that the defendants thereupon, by reason of their confidence in plaintiff, and their belief of the truthfulness of his assertions, signed the said new note and delivered it to plaintiff; that, contrary to plaintiff’s declaration, the said new note had been by him made payable one day after its date; .... that the plaintiff’s statements and representations to defendants were false and fraudulent, and were knowingly and [224]