
    Benjamin Stone, Respondent, v. Eli C. Frost, Appellant.
    (Argued May 15, 1874;
    decided September term, 1874.)
    An action can be maintained to recover back the purchase-price paid under a contract of sale without proof of warranty or fraud where, upon delivery of the property, it proves to be utterly valueless, and where an offer to return has been made by the purchaser and refused.
    In an action brought by an assignor it is not competent for defendant tc question the sufficiency of the consideration paid for the assignment.
    
      This was an action to recover back moneys paid by plaintiff and one H. (who assigned his claim to plaintiff) to defendant, as the purchase-price of a quantity of grape roots. Plaintiff’s evidence .tended to show that the roots, when delivered, were dead and perfectly worthless, and that plaintiff tendered them back. Defendant’s counsel moved for a nonsuit, upon the ground, among others, that the action being in the nature of one for money had and received, and not being based upon a warranty or fraud, could not be maintained. The motion was denied. Held, no error, as the evidence tended to show that the money was paid without any valuable consideration, and that plaintiff could recover without proof of warranty or fraud.
    As to the claim assigned by H., defendant’s counsel requested the court to instruct the jury “ that the same was made without consideration, and that, as to that demand, the plaintiff is not the real party in interest, and cannot recover thereon.” This was refused. Held, no error; that the request assumed the fact that there had been an assignment, and it was not competent for defendant to question the sufficiency of the consideration therefor.
    Various other questions as to the ruling of the court in the reception of evidence were disposed of upon the facts in the case.
    
      John J. Van Allen for the appellant.
    
      Morris Brown for the respondent.
   Lott, Ch. C.,

reads for affirmance.

All concur.

Judgment affirmed.  