
    David Ellis versus Daniel Wild.
    If A sells merchandise to B, and agrees to receive certain promissory notes in payment, if the notes are afterwards discovered to be forged, and B was ignorant of the fact, A cannot afterwards resort to B for payment for the merchandise. — Otherwise, if the original bargain was for cash, and the notes were received by the vendor as an accommodation to the vendee.
    This action was assumpsit for a quantity of New England rum sold and delivered by the plaintiff to the defendant. The general issue was pleaded, and upon a trial before Parker, J., at the last November term, a verdict was taken by consent for the plaintiff, subject to the opinion of the Court on the facts stated in the judge’s report.
    From the report it appears that the defendant, having in his possession two promissory notes signed by one Silas * Clark, and purporting to be payable to, and endorsed [ * 322 ] by, one Samuel Withington, bargained with the plaintiff for a quantity of New England rum, equal in value to the amount of the said notes, for which he was to pay the plaintiff by those notes. The rum was accordingly delivered to the defendant, who delivered the notes to the plaintiff in payment. The endorsements of the notes proved afterwards to be forgeries, of which, at the time of the sale of the rum and delivery of the notes, both parties were equally ignorant and innocent. Before the notes became due, Clark failed and absconded, and was accused of having forged Withington1 s name to a number of notes.
    If, upon these facts, the Court should be of opinion that the plain tiff is entitled to recover, judgment to be entered on the verdict; otherwise, the verdict to be set aside, and the plaintiff to become nonsuit.
    It was argued for the defendant, that he had fulfilled the contract on his part; that this was not a payment of a precedent debt; that the notes, when passed to the plaintiff, were of some value, Clark, being then in business; and that, if the plaintiff had contemplated holding the defendant liable, he would have insisted on his endorsing the notes. 
    
    
      For the plaintiff, it was said that the evidence was not of an agreement originally for these identical notes. They might have been received by the plaintiff instead of cash ; in which case it would be very clear that the original promise was not discharged. There was, on any supposition, an implied warranty that they were what they purported to be ; and as the plaintiff has parted with his goods for something which at the time both parties believe to be of value, but which proves to have been worth nothing, the plaintiff may well resort to the original assumpsit. 
      
    
    The opinion of the Court was afterwards delivered by
    
      Selfridge and Bourne for the plaintiff.
    
      Bigelow and Whiting for the defendant. 
    
    
      
       1 Esp. Rep. 446, Fydell vs. Clark & Al. — Bull. N. P. 277, Bank of England vs. Newman. — 1 Salk. 124, Clark vs. Mundal. — 2 L. Raym. 928, Ward, vs. Evans.— 3 Burr. 1354, Price vs. Neal.
      
    
    
      
       2 Johns. Rep. 455, Markle vs. Hatfield. —7 D. & E. 64, Owenson vs. Morse. — 6 D. & E. 52, Puckford, vs. Maxwell. — 3 Bos. & Pul. 582, Dutton vs. Solomonson. — 2 Caines's Rep. 117, Roget vs. Merritt & Al.
      
    
    
      
       [See 2 Ld. Raym. 929, 930. — 1 Salk. 124. — 7 D. & E. 66. — 1 Esp. 5. — 6 D & E. 52. — 7 Mass. Rep. 286. — 2 Stark. 95. — Ed.]
    
   Parsons, C. J.

The real question in this case is, on which of the parties, both being equally innocent, the loss of the notes [ * 323 ] shall fall. And it is our opinion, if it was the * original intent of the defendant to sell, and of the plaintiff to buy, the notes, and to make payment in rum, the defendant has fulfilled his contract, and the plaintiff cannot maintain this action.

But if the plaintiff intended to sell the rum for money, and the defendant intended to buy rum, and the payment by the notes was not a part of the original stipulation, but an accommodation to the defendant, then he has not paid for the rum, and the action is maintainable.

Were we to decide on the intent from the words of the report, -ye must conclude the intent of the plaintiff to have been to deliver rum in payment for the notes; and therefore the verdict must be set aside. As the plaintiff has contended that the testimony was not delivered in the words of the report, but was given to the jury in a manner whence they might rightly make a different inference, we do not order a nonsuit; but, the defendant consenting, grant a new trial, that a jury may decide on the true intent of the parties in making the bargain.

Let the verdict be set aside, and a neto trial be granted  