
    Winston v. Tufts, Fermor & Hobart.
    Plaintiff charged defendants with selling to them, through a broker, a note drawn and endorsed by M., and with causing M. to be alleged as solvent, when it was known to defendants that he was insolvent, and prayed judgment against the defendants for the amount of the note. Held : The plaintiff’s proper remedy was in action to avoid the contract transferring the note.
    PPEAL from the Fourth District Court of New Orleans, Reynolds, J.
    Hiestand, for plaintiff and appellant.
    
      Goold & Stansbury, for defendants.
   Buchanan, J.

The petition charges that defendants, being the holders of a note drawn and endorsed by one Montanye, who was insolvent to the knowledge of defendants, put the same in the market, and caused the said Montanye to be represented as perfectly solvent; through which false representations and fraud of defendants, the plaintiff became the purchaser of said note, which was protested at maturity for non-payment. Plaintiff sues defendants for the amount of the note, with interest and costs.

The answer admits, that defendants had been the original holders of the note sued on; that they had put the same into the hands of a bill-broker for sale at the highest market value; denies that they made representations to plaintiff, or any other person, as charged in the petition ; avers that plaintiff, in buying said note, could not have been made to believe that the maker was perfectly good and solvent, inasmuch as the note was offered to him and purchased by him, at an enormous discount.

There was judgment of nonsuit, from which plaintiff has appealed.

We think plaintiff has mistaken his remedy. Defendants were not endorsers of the note, and supposing the allegations of the petition to be true, plaintiff, could not claim the payment of the note at the hands of defendants, but only a return of the price paid by him for the note. O. C. 2619.

There is a prayer for general relief; but this cannot entitle him to a decree, which is inconsistent with the special remedy sought. That remedy is the specific performance of the contract of Montanye; while the law only admits an action for the avoidance of another contract, to wit, that of transfer or sale of Montanye's note. Brown v. Schmidt, 1 Ann. 849.

Apart from this technical objection, the plaintiff has failed to make out his case by evidence. The defendants have not been connected with the purchase of the note by plaintiff. That purchase was made from a broker named Levy, and the ostensible holder of Montanye's note when purchased, was one Donaldson, -who received its proceeds. The broker Tufts, through whom defendants sold the note, appears to have disposed of it to Donaldson, who paid him for the same. The answer is not viewed by us as containing an admission that plaintiff purchased the note from defendants. The allegations of the petition concerning representations of the solvency of Montanye, having been made to plaintiff at the time of the purchase, are distinctly disproved by Levy,

Judgment affirmed, with costs.  