(December Term, 1832.)
In an action upon a promissory note, a total failure of consideration may be given in evidence to defeat it; but it is otherwise where there is only a partial failure, that can only be remedied by a distinct suit.
ASSUMPSIT upon a promissory note, given by the defendants upon an exchange of vessels.
Iredell for plaintiff.
No counsel for defendants.
Plea — general issue. On the trial at WASHINGTON, on the last circuit, before Donnell, J., the defendants offered to prove that the vessel (391) which they received from the plaintiff was not seaworthy; and it was insisted for them that this evidence should be received to reduce the amount which the plaintiff claimed. But his Honor refused to receive the evidence, observing that where there was a total failure of consideration, the evidence was proper, but where the failure was partial, it was the ground of a cross-action.
Verdict for the plaintiff, and appeal by defendants.
The law authorizes the defendant, in an action on a promissory note, or on a bill of exchange, where the suit is between the original parties, to give in evidence a total failure of the consideration as a defense. Greenleaf v. Cook, 2 Wheat., 15. But when the failure of consideration is partial, it is otherwise. The case of Morgan v. Richardson, 1 Camp., 40, note, was an action brought against the acceptor of a bill of exchange, at the suit of the drawer, the bill being payable to his own order; defense that the bill had been accepted for the price of some hams bought by the defendant from the plaintiff, to be sent to the East Indies, and that the hams had turned out so very bad that they were not marketable. The sum for which they actually sold was paid into court. Lord Ellenborough held that, although an entire failure of the consideration of the bill would be a defense to an action upon it by the original party, yet it was otherwise where the failure was partial, and that then the drawer must take his remedy by an action against the person to whom it was given. Tyre v. Gwyne, 2 Camp., 346, was an action by the drawer and payee of a bill of exchange against the acceptor; the defendant proposed to prove in mitigation of damages that the bill had been accepted for the price of a quantity of cheese sold by the plaintiff to the defendant for exportation; that the cheese was of a bad quality, and improperly packed, and that the consideration for (392) the acceptance had in a great measure failed. Lord Ellenborough said: "Sitting here, I shall certainly adhere to the judgment of the Court in Morgan v. Richardson. There is a difference between want of consideration and failure of consideration. The former may be given in evidence to reduce the damages or defeat the plaintiff's action; the latter cannot, but furnishes a distinct and independent cause of action. There is a distinction between the contract and the security. If part of the contract arises on a good consideration, and part on a bad one, it is divisible. But it is otherwise as to the security, that being entire." We think the judgment should be affirmed.
PER CURIAM. Judgment affirmed.
Cited: Purtel v. Morehead, 19 N.C. 241; McEntyre v. McEntyre, 34 N.C. 302; Hobbs v. Riddick, 50 N.C. 81; Johnston v. Smith, 86 N.C. 501; Jones v. Rhea, 122 N.C. 724; Lumber Co. v. Buchanan, 192 N.C. 774.