
    Griffiths vs. Parry, and others.
    
      A note procured by the payee from the maker, by falsely representing that he had paid the amount thereof to a third party for the maker’s benefit, when, in fact, he had only paid a much less sum, is valid for the sum actually paid, and void only as to the residue.
    APPEAL from the Circuit Court for Racine County.
    Action to recover the amount of a promissory note for $281.13, signed by the defendant Ann Parry and by the defendant Evans as security, dated July 1st, 1859, payable two years after date.
    The answer alleges, among other things, that in 1855 Joseph Parry, then the husband of the defendant Ann Parry, executed a mortgage to Hannah Eelc'h securing the payment of 01,725, payable in five equal annual instalments on the 17th of April in each year thereafter; and that an instalment became due thereon in April, 1858, and the defendant Ann Parry was endeavoring to borrow the money with which to pay it, when it was agreed that the plaintiff should let her have that sum, and a certain mare he then owned, for. her promissory note for $200, payable in one year thereafter, and a colt she then owned, which colt was delivered and the mare received by her; and that the plaintiff falsely represented to her that he had paid the sum of $180 on the mortgage, and would pay the balance soon, and that relying on said statement, she executed the note for @200, as agreed upon, and that subsequently the plaintiff became the owner of a note given by said Ann Parry for $80, and procured her to give a new note, the one in suit, for the amount of this note and the said $200 note, with the defendant Evans as security, by falsely representing to the defendant Ann Parry that he had paid the sum of $200 on said mortgage, when in fact, he had paid only the sum of $100 thereon, and that she, confiding in saidjepresentation, executed the said note, with Evans as security.
    At the trial, considerable evidence was given in support of these facts, and after the testimony had been closed, the court instructed the jury, “that if the plaintiff obtained the $200 note in May, 1858, by fraud, pretending to Ann Parry that he • had paid that sum upon the mortgage for her benefit, when he had paid but $100, he could not recover for any part of the note in suit, but the whole would be justly forfeited and the note void ”; to which instruction the plaintiff excepted. There was a verdict and judgment for the defendants, from which the plaintiff appealed.
    
      Paine & Millet, for appellant.
    
      Strong & Fuller, for respondents,
    contended that, if the note was void in part, it was void in toto. Curtis vs. Leavitt, 15 N. Y., 96.
   By the Court,

Dixon, C. J.

The judge was wrong in charging the jury that if the $200 note, dated in May, 1858, was obtained by fraud, the plaintiff falsely representing that he had paid $200, upon the mortgage, when in fact he had paid but $100, the note in suit was void, and nothing could be recovered upon it. The note was good for the sum actually paid, and void only for the residue. Haycock vs. Rand, 5 Cush., 26; Hammott vs. Emerson, 27 Me., 308; Colburn vs. Ware, 30 id., 202; Deering vs. Chapman, 22 id., 488; Andrews vs. Wheaton, 23 Conn., 112; Wade vs. Scott, 7 Mo., 509; Brown vs. North, 21 id., 528.

Judgment reversed, and a new trial awarded.  