#### JOHN W. MATTHEWS vs. W. D. SMITH.

Whpre a person purchased a worthless article as a fertilizer, and gave his note for the purchase money, and afterwards paid the same, with a full knowledge ot the. facts; it was held, that lie could not recover the money paid, although paid under threats of a law suit.

It is error in a Judge to leave a case to the jury upon a hypothetical state of facts, unwarranted by the evidence.

Civil action, to recover money had and received to use of plaintiff, tried before JBtixton, J., Spring Term, 1872, of CUMBERLAND Superior Court.

Plaintiff'testified, that he went to the defendant’s store in Payetteville, to examine an article which defendant had advertised as “ Phoenix Guano that defendant recommended it highly as a fertilizer, and said that- it was superior to the Peruvian, in many respects. Upon these representations lie bought,.2,228 pounds, and gave a note with sureties to secure the price; tiiat, he applied the “Phceriix Guano” to a part of his crop ; that the land was well cultivated, and that the Guano was absolutely worthless, and injured the land ; that he told defendant the result of his experiment, and asked him to bring a friendly suit to test bis right to recover. He declined, and said he would sue unless plaintiff paid him ; that the Phoenix contained all the qualities which he bad recommended ; that it had been analyzed by a chemist, and that he eould show by other persons that it did good. Plaintiff said he was forced to pay, to relieve his sureties, and told defendant that if he failed in a suit which he had brought against other parties upon a similar claim, he, plaintiff, would sue him to get. back his money.

Another witness testified as to the worthlessness of the article, and gave it as his opinion that it was of no value whatever.

The grounds of defence were: That the money was paid *375after a full knowledge of all the facts, and therefore plaintiff could not recover in this action. That although paid under aj threat of a law suit, yet that plaintiff could not recover, as the money was paid under-a mistake of legal liability.

I-Iis Honor charged the jury, that if a spurious article was sold to the plaintiff, as genuine gitano with valuable fertilizing qualities, the plaintiff could not recover the price paid, if be paid the money with a full knowledge of all the facts, even though he paid it to relieve himself and- his sureties from a threatened suit; that the plaintiff was bound to know that the law wonld protect him from a recovery on the note; but that if the plaintiff, in consequence of misrepresentation, taken in connection with threats of suit made by the defendant, was induced to believe that he was mistaken in the estimate he then formed of the worthlessness of the article after a trial of it, and paid the money under this misapprehension, then this being a mistake of fact, the plaintiff' was entitled to recover. Defendant excepted.

There was a verdict for the plaintiff. Rule for new trial. Rule discharged. Judgment and appeal.

Broadfoot and McRae, for plaintiff.

Hinsdale and B. dé T. G. Fuller, for defendant.

Reade, J.

llis Honor charged correctly, “that the plaintiff could not recover if he paid the money with full knowledge of the facts.” And then he ought to have added, that according to the plaintiff’s own testimony he hád full knowledge of the facts; but, instead of that, he left it to the jury to determine whether the defendant had not, by misrepresentations and threats of suit, induced the plaintiff to believe that be was mistaken as to the estimate he had formed of the worthlessness of the guano, and in that way paid under a mistake of facts. The evidence does not support the hypothesis; for the *376plaintiff testified, expressly, that he “ was forced to pay the note to relieve his sureties from a suit,” and that he told the defendant that, if the defendant failed to recover in a suit that he had brought against others tor guano, he would sue him tor his money back. And he did not allege, that any thing the defendant said to him changed his mind as to the quality of the guano.

There is error.

Pee Curiam. Venire de novo.