
    LOUIS MUELLER, PLAINTIFF, DEFENDANT, v. LUDWIG BUCH, DEFENDANT, PROSECUTOR.
    Submitted June Term, 1904
    Decided November 7, 1904.
    It would be a good defence, in a suit between the original parties to a promissory note, to prove that the note was obtained by the plaintiff from the defendant by misrepresentations and was without consideration, and it is error for the court, upon such a defence being opened, to overrule it and to direct a verdict for the plaintiff.
    On certiorari to the Camden District Court.
    Before Justices Fort and Reed.
    For the prosecutor, Henry S. Scovel.
    
    For the defendant, George J. Bergen.
    
   The opinion of the court was delivered by

Fort, J.

This was a suit upon a promissory note for $100, made by the defendant to the plaintiff. The consideration of the note, the plaintiff testified, was money loaned and advanced to the defendant. The defence, which was opened and which was overruled by the court without testimony being-taken, was that the plaintiff was an agent of one Howell, to sell for him a piece of land; that the plaintiff had stated to the defendant that the sale price would be $1,800, and that the note in suit had been given by the defendant to the plaintiff in part payment of the consideration of the conveyance, the note, however, being made to the plaintiff, and not to Howell, the prospective grantor, at the plaintiff’s request. When the deed came to be drawn and delivered the consideration stated in it was $1,700, and upon inquiry the defendant learned that this was the true consideration for the conveyance and the price which was paid to Mr. Howell for the land, and that immediately the defendant had protested to the plaintiff against the payment of the $100 note and the manner in which it had been obtained from him, and that the plaintiff had replied, “Well, I am going to keep that note for myself, and when it comes due you have got to pay it.”

It was this proposed defence, as just outlined, in substance, that the court overruled.

If this defence had been established to the satisfaction of the jury, as opened, it would have, been good. The note, in that event, would be not only without consideration, but would be shown to have been obtained by fraudulent representations.

The parties to this suit are the original parties to the note, and the note is open to all legal defences, between them. The defence offered was improperly overruled. Holcomb v. Wyckoff, 6 Vroom 35; 4 Am. & Eng. Encycl. L. (2d ed.) 325.

The judgment of the District Court is reversed, and a new trial is granted.  