
    MAGOFFIN vs. MULDROW.
    Where an article of Co-partnership has been obtained by fraud, and money paid upon it, the person defrauded may treat the article as a nullity, and recover his money on the common count, in assumpsit for money had and received.
    ERROR TO HANNIBAL COURT OF- CtiMMON PLEAS.
    Glover & Campbell, for plaintiff.
    1st. That the article of co-partnership, and the sale of the lots in Marion city, were obtained by fraudulent representations on the part of Muidrow, and were null and void in law. Fraud violates all things. The argument which insists that the plaintiff should have sued on the covenants in the article, mistakes the position and case of the'plaintiff; and would compel him to accept in lieu of his money the damages he has lost for not building a mill in that place upon the lands of third persons wher might have hold (he improvements, and where the market for lumber was not such ashy the improvement and prospects of the city he had the right to expect.
    2d. Whether the contracts upon which the plaintiff had paid the defendant $3333 33 cents had been obtained fraudulently or not, was a question for the jury, the decision of which the court improperly usurped.
    3d. If they were fraudulently obtained, the action of assumpsit was weii brought, upon notice of the plaintiff that he disaffirmed them, to recover on the countfor money had and received what the plaintiff liad paid on Iho consideration which failed—the agreements which were rea'd in Malone vs. Hairis,'tins court held rió demand was required. 6 vol. Mo. Dec. 451-5 2 Tuck. Com-‘title assurhpsit.
    Pratt & Redd, for defendant.
    Tile action should have been upon the cbivtract, or an action'upon the case. Thai if ho ioliea upon any fraud, lie should sot out specifically the fraud.
    That though fraud will vitiate all contracts, yet where the contract ia lawful, that if any fraud is charged, the plaintiff must either bring an'action to sot aside the contract, or for the fraud. That such contract is not void for fraud, but voidable, and the same remains good until avoided or set aside.
    That the plaintiff has no light to abandon the contract of partnership and sue for money had and received, the partnership being for a legal purpose. That there are no issues of fraud In tho case to try from the pleadings.
   Judge Ryland

delivered the opinion of the court:

The plaintiff, Magoffin, sued Muldrow in assumpsit, for money had and received-, for money paid, laid out and expended &c., for money lent &c., and for interest.

The defendant filed non-assumpsit and set-off.

On the trial of the case the plaintiff offered in evidence an article of copartnership between himself and the defendant, under their hands and seals, stating that it had been obtained by fraud, and tWt be intended to prove that large sums of money had been paid by him to Muldrow upon this article. The plaintiff then offered evidence to show the ■fraud of Muldrow in obtaining the article, and to show large sums of money advanced to him by plaintiff under the 'article of copartnership.

The court rejected all the evidence offered by plaintiff, after the article of copartnership was exhibited, thereby preventing his proof of fraud, and also preventing the proof of the payment of large sums of money under the article by plaintiff to defendant.

The plaintiff excepted to the opinion of the court, in rejecting the testimony, took a non suit, and then moved to set the non suit aside ; which motion was overruled—excepted to, and the plaintiff now brings the cause here by writ of error.

I am of the opinion that the court below erred in refusing to admit testimony to show the fraud and the payment of money under this article of copartnership.

Fraud vitiates the contract, and if the article was obtained by fraudulent representations—and money paid thereon by means of such fraudulent acts on the part of the defendant; I hold it clear that the plaintiff had an undoubted right to treat this article of copartnership as a nullity, as an act arising íc ex dolo el malo” and to sue in this form of action to recover the money paid by him to defendant, under this fraudulent article. The court then erred in not permitting the plaintiff 5s proof as offered 3 and its judgment is reversed—cause remanded, with directions to set aside the non suit, with leave to plaintiff to proceed with his action.  