Wythe to Thomas Jefferson, 9 March 1781
Williamsburg, March 9th, 1781.
Notwithstanding those to whom the bills were drawn immediately payable, could not have been entitled to more than the value received for them, I think that Mr. Nathan, the endorsee, if he were not privy to that transaction, and actually paid cash, or an equivalent for them at par when he took them up, may equitably, as well as legally, insist upon the assumpsit; because the terms of the contract between the drawers and original holders not appearing in the bill, as I suppose, it could bind only themselves and such as had notice of the terms, and the contract between him and the drawers was entered into without any deception which could make it appear unfair on his part.
If he were not privy to the contract between the drawers and original holders, and had not mentioned any thing of what he paid for the bills, he might have been irreprehensible; but having informed the Executive that he had taken them up at par, if he do not prove that fact, for otherwise the contrary is presumable, because it is in his power to do it, and the other party probably cannot disprove it; I think equity will relieve against the assumpsit upon this principle, that there was a suggestio falsi on his part, and an advantage gained by it. If he knew of the contract between the drawers and original holders, as he did not mention it to the Executive, although what he said of taking them up at par be true, it seems a disputable question whether there can be any relief. It would be going too far to say that in every bargain one party should disclose to the other whatever the former knows and it is the interest of the latter to know: a total silence, if the dealing in other respects be fair, may be innocent; but if one disclose part only of what he knows, and concealing the rest, by that means gain an unconscienable advantage, this seems a culpable suppression of the truth, because the other party confided in him, and that confidence was abused by not relating the whole truth. Frivolous as this might appear in a matter of light moment; in this case, I suspect the gain to have been enormous, and suppose Mr. Nathan to have been well apprised of the difference between paper bills, the only money which circulated in this Commonwealth, and gold and silver, I think it a good foundation for controverting his demand.