" Re Guy Johnson William Johnson al. William Price, John Strickland and Edward O'Melly, supra, p. 138 (1820); cf. State v. Randall, 2 Vt. (Aiken) 89, (1827); (cf. Baldwin v. Van Deusen where it is stated: "In reference to bank-bills, bills of exchange, promissory notes and securities for money, the natural and general, if not the universal, antithesis or opposite of genuine, is `counterfeit.' Hence we say of a bank-bill it is a genuine bill — i.e., not a counterfeit bill . . ." 37 N.Y. 487, at p. 493, (1868)); see, Wiggains v. United States, 214 F. 970, at p. 971; "The bonds admittedly belonged to the plaintiff in error." Forlini v. United States, 12 F.2d 631, at p. 634; ". . . appellant visited the basement while counterfeiting operations were in progress and participated in conversations as to Page 550 the appearance of the bills that were being made and the necessity of putting more yellow in the coloring"; Nebbelink v. United States, 66 F.2d 178; "One bill was found in his clothes, and he volunteered to show the officers where the rest were. . . . The sole issue was as to whether after Hatlen showed him the bills, he co-operated with him in disposing of them . . .
The fact that the implied warranties of section 115 of the Negotiable Instruments Law are stated in absolute terms does not, in our judgment, preclude parol evidence of the transferee's knowledge of invalidity. Both under the law of sales of chattels (1 Williston, Sales §§ 219, 234) and under the law merchant before the N.I.A. (Baldwin v. Van Deusen, 37 N.Y. 487; Bell v. Dagg, 60 N.Y. 528; Coffman v. Allin et ux. Litt. Sel. Cas. [16 Ky.] 200; Beal v. Roberts, 113 Mass. 525; Porter v. Bright, 82 Pa. 441; Carroll v. Nodine, 41 Or. 412, 69 P. 51, 93 Am. St. Rep. 743), the purchaser's knowledge of defects, proven normally by parol evidence, negatives the implication of the usual warranties as to such defects. See Britton, "Liability of Transferor by Delivery and a Qualified Indorser," 40 Yale Law Jour. 215, 254, and 255, and cases cited.
Judge Walter H. Sanborn states the rule as follows: "An express warranty of one of the qualities of an article excludes an implied warranty of other qualities of a similar nature. The exaction or acceptance by the purchaser of personal property of a warranty of one quality raises a conclusive presumption that he did not desire, or could not secure, or the parties agreed that he should not have, the warranty of others of the same character. Benjamin on Sales (7th Am. Ed.) 672; Carleton v. Lombard, Ayres Co., 72 Hun, 254, 260, 25 N.Y.S. 570; Jackson v. Langston, 61 Ga. 392; Baldwin v. Van Deusen, 37 N.Y. 487, 489; Deming v. Foster, 42 N.H. 165, 175; Dewitt v. Berry, 134 U.S. 306, 313, 10 S. Ct. 536, 33 L. Ed. 896; Seitz v. Brewers', etc., Machine Co., 141 U.S. 510, 517, 12 S. Ct. 46, 35 L. Ed. 837; Buckstaff v. Russell Co., 79 F. 611, 615, 25 C.C.A. 129, 133; International Pavement Co. v. Smith, etc., Machine Co., 17 Mo. App. 264, 269; Chandler v. Thompson (C.C.) 30 F. 38, 46; J.I. Case Plow Works v. Niles Scott Co., 90 Wis. 590, 604, 63 N.W. 1013; McGraw v. Fletcher, 35 Mich. 104, 106; Mullain v. Thomas, 43 Conn. 252, 254. There was no implied warranty of the fitness of the pump to do the work for which pumps of its nature are designed, and there was no breach of the express warranty contained in the contract." Reynolds v. General Electric Co. (C.C.A. 8) 141 F. 551, 556.
Webster's New World Dictionary (1962) defines genuine as "really being what it is said to be; actually coming from the alleged source or origin; real; true; authentic; not counterfeit or artificial". For similar definitions see Reynolds Metals Co. v. Metal Disintegrating Co., 8 F.R.D. 349, 352 (D.N.J. 1948); Baldwin v. Van Deusen, 37 N.Y. 487, 492 (1868). The bank contends that the signature in issue was "genuine" because it was made by the person whom the bank considered the co-maker, that is, by the person who appeared as co-owner of the property, and that the name "Victoria North" was not the name of any other person.
The due execution of an instrument goes to the manner and form of its execution, according to the laws and customs of the country, by persons competent to execute it." Puritan Mfg. Co. v. Toti Gradi, 14 N.M. 425, 94 P. 1022; Moore v. Copp, 119 Cal. 429, 51 P. 630; Baldwin v. Van Deusen, 37 N.Y. 487. The Idaho Supreme Court said, in discussing a question similar to the one in this case: "Could it be contended that setting up those facts of fraud and deceit was denying the genuineness and due execution of the note? Clearly not.
The answer must, therefore, be construed as admitting the genuineness of the note — i.e., the genuineness of the actual signatures. (Code Civ. Proc., sec. 447; Abbott's Law Dictionary, Anderson's Law Dictionary, Black's Law Dictionary, Bouvier's Law Dictionary, word "Genuine"; Baldwin v. Van Deusen, 37 N.Y. 489; Cox v. Northwestern Stage Co., 1 Idaho, 376, 380.) Accordingly, the court finds that Annie Kline Rikert "made, executed, and delivered" the note to the plaintiff; which is in effect a finding of the genuineness of both her signatures. Hence the finding objected to cannot be construed as a finding to the contrary.
Marston Eastman, for the plaintiff. The payment was not a satisfaction, pro tanto, of the note. It was the same as a payment in notes believed to be good, but which turned out to be bad. Roberts v. Fisher, 48 N.Y. 159; Markle v. Hatfield, 2 Johns. 455; Lightbody v. Ontario Bank, 11 Wend. 11; Baldwin v. Van Deusen, 37 N.Y. 487. The money received by the plaintiff was paid back, and Lane's estate in bankruptcy had the benefit of it. It is, in effect, the same as the levy of an execution upon real estate to which the debtor had no title. The execution not being satisfied by such a levy, the judgment remains in force, or is revived by the failure of title. Adna being in bankruptcy, his assignee stands as his executor or administrator would stand if Adna had deceased, and the bankrupt is bound by the judgment recovered by his representative.
Both being ignorant of such a fact the plaintiff is allowed to rescind the contract in the courts of this State." The court quoted with approval Leger v. Bonnaffe (2 Barb. 475) where a party had purchased bills of exchange on a foreign house which had then failed, unknown to the parties here, and paid for them in notes of third persons; and it was held that the purchaser might rescind the purchase, as founded in mutual mistake, and that he could reclaim his notes; and also Baldwin v. Van Deusen ( 37 N.Y. 487) where the plaintiff had sold the notes of one Onley as genuine, who it was subsequently discovered was an infant — a mutual mistake — and it was held that this gave the right of rescission to the defendant upon the discovery of the mistake. Wilson v. Randall ( 67 N.Y. 338) was a case of an executed contract for the purchase of land, where instead of receiving fifty-six and fifteen one-hundredths acres, as shown by the survey, upon which basis plaintiff paid for the property at an acreage price, there were but forty-eight and forty-seven one-hundredths acres in the tract.
But the defendant here did not rely upon an implied warranty that the chattel was generally fit and suitable, but upon representations as to quality that are in the nature of express warranties, to wit, that it could be operated by hand by two men; that it would discharge concrete in half-yard batches; that it would work to the entire satisfaction of the defendant, and that if it did not, defendant should have the right to return it. An express warranty with reference to quality precludes an implied warranty with reference thereto, even though it relate to a different quality. ( Baldwin v. Van Deusen, 37 N.Y. 487; De Witt v. Berry, 134 U.S. 306; Carleton v. Lombard, Ayres Co., 72 Hun, 254, 260; Deming v. Foster, 42 N.H. 165.) Although a subsequent decision in the Carleton case, above referred to (see 78 Hun, 616), was reversed in the Court of Appeals ( 149 N.Y. 137), the rule above stated was not only not questioned, but was expressly affirmed, as appears from the opinion on the motion for a reargument. ( Carleton v. Lombard, Ayres Co., 149 N.Y. 601.) That the jury could not have understood the charge as relating to an implied, as distinguished from an express, warranty is emphasized by the fact that when counsel for defendant asked the court to charge the law relating to implied warranty, it refused upon the ground that the answer alleged an express warranty, and that the case had been tried upon that theory.