#### STEPHEN PAGE v. MOSES EINSTEIN.

Money paid on the sale of a promissory Yiofce satisfied and extinguished, was held to be recoverable back in an action for money had and received, and it does not vary the principle, that the payment was made in a note on a third person, which was afterwards converted into money.

Where the question was, collaterally, whether a certain nole had been paid off and discharged, it was held not necessary to produce such note on the trial.

This was an action of assumpsit for money liad and received, tried before Shepherd, J., at the Spring Term, 1859, of Lenoir Superior Court.

The plaintiff proved that he had purchased from the defendant an unendorsed note, produced by him on the trial, payable to Mrs. O. E. Oustia, made by Nelson & Clark, which was given for the hire of two slaves. The note was not delivered to plaintiff in payment of any precedent debt, but, was a mere purchase, for which he paid a part in cash, and the residue in a note on one Johnson H. Bryan. The plaintiff then proved that the note had been fully paid to the agent of Mrs. Oustis, who gave a receipt for the money, but not having the note, did not surrender it to Nelson & Clark, before *148the sale of it to plaintiff by the defendant; that he informed the defendant of this, demanded a repayment of the money before suit, to which defendant replied he had given full value for the paper to one Perry, who was indebted to him; that-he knew nothing of the previous payment to Mrs. Custis, and would not account to him for the loss.

The defendant then offered evidence to show how he came by the note, viz., that he found it in possession of Perry, who was indebted to him ; that he made enquiries of sundry persons in reference to the paper, who told him that Clark, the surety, was undoubtedly good; that he then receipted in full an account of some ninety dollars which Peri-y owed him, and paid money for the balance of the amount due on the note.

There was no evidence of how Perry became possessed of the note, nor was it shown that the note had been surrendered to Nelson & Clark by any one. In the cross examination of one Fields, offered by defendant, the plaintiff’s counsel asked him whether ho knew that the note of Bryan had been paid to the defendant, objection was made by defendant that no notice to produce the note had been given, but the objection was overruled, and the defendant excepted. Fields then answered that he had purchased Bryan’s note from defendant, and that Bryan had paid it to him. Defendant sold the Bryan note to him, (Fields) before this auit was brought. There was no evidence that defendant had any other note of Bryan. There was no evidence that defendant knew, at the time of the sale to the plaintiff of the Clark & Nelson note, that it had been paid.

Upon this case, the Court directed the jury to find for the plaintiff. Exception by the defendant.

Yerdict for the plaintiff. Judgment. Appeal by the defendant.

Green, for the plaintiff.

J. W-. JBrya/n, for the defendant.

*149Manly, J.

A recovery in assumpsit can only be effected where there is a total want of consideration, as where the promise is based upon the sale of a horse that is at the time dead. And a payment made of the purchase-money upon such a sale, would be money had and received to the use of the party paying, and might be recovered back, irrespective of any question of fraud.

So, we think money paid for a promissory note, satisfied and extinguished, and which, therefore, has no longer any life as an obligation, stands in the same condition. While the seller of an article of personal property, and likewise, as we suppose, of a chose in action, is not held, in the absence of an express promise, to be liable for defect of quality, yet he is liable if it turn out that the article sold, had no existence at tire time, or, that it was a nullity by reason pf forgery, or the like. The liability is not in the nature of a warranty, but rests upon the plain principle of justice, that when something Is paid for nothing, through ignorance of facts, the law will reinstate the parties by nullifying the whole transaction. Assumpsit has long been held to be the remedy in such cases.— The case of Anderson v. Hawkins, 3 Hawks’ Rep. 568, was an exchange of bank notes, in which the money received by plaintiff, turned out to be counterfeit, both parties being equally ignorant of the fact. The plaintiff was permitted to recover his money back in an action of assumpsit. This case is in point. The only distinction is, in the one case, the notes were forged, in the other, paid. In both, they were equally null and worthless, and it seems to ns, the same principles and rules of law,.ought to govern them. See the case of Hargrave v. Dusenbury, 2 Hawks’ Rep. 326. On the trial, it was necessary, in order to charge defendant, as for money liad and received, to show that he had received payment of a note taken from plaintiff, and a witness was asked if he knew it was paid. The testimony was objected to for reasons stated in the ' bill of exceptions, but the witness answered under leave from the Court, that he had purchased the note in question of defendant,-and that the obligor had paid it to witness. Objec*150tiou to this evidence, on any ground, is untenable. If the note had been in existence and produced, it could have shown nothing pertinent to the enquiry. The contents were not material. The point under investigation was, whether Einstein had turned the note into cash, and the best evidence of this was the oath of the person to whom he had sold it. There was no error on the trial below, and the judgment must be affirmed.

Per Curiam,

Judgment affirmed.