Austin v. . Dawson

¶1 Assuming that the defendant is fixed with the scienter in regard to the illegality of the bond, and assuming also that the bond was void, and that the plaintiff had a cause of action because of a total -failure of consideration, as well as because of the deceit, in either point of view the cause of action grew out of the contract for the sale of the bond. That contract, in its legal effect, was executed on the 18th of May, 1868, and the plaintiff’s cause of action accrued on that day. The summons issued on the 22d of May, 1871, so the action is barred by the statute.

¶2 The position of the plaintiff’s counsel, that the contract of sale was not executed, and the plaintiff’s cause of action did not accrue until June, when Mr. Norfleet, the agent of plaintiff, applied to the defendant for the bond, and accepted it as the bond which was the subject of the sale, for that, up to that time, he had a right to object to the particular bond, which the cashier at his request had set aside for plaintiff, has no force. Admit he had a right to object to a particular *526 bond — he made no objection, and accepted the bond as the very bond which was the subject of the contract. This taking of the bond being made in reference to the contract of sale in its legal effect, related back to the contract of sale at which date the cause of action accrued. Williams v. Perkins, Busbee, 253. The rosin was not called for within the time stipulated. Waldo v. Belcher, 11 Ired., 609. The corn had not been measured and set apart. Here the very bond, No. 172 (see complaint), was set apart, and afterwards accepted.

¶3 Per CuriaM. Judgment affirmed,