Hancock v. Palmer

Peckham, J. —The action was upon certain acceptances of the defendant. The defendant set up that the acceptances were given on account of certain railroad iron which the plaintiffs had agreed to deliver “ on the wharf in Brooklyn” at certain times, pursuant to a contract to that effect. That by the contract, a copy whereof is set forth in the answer, the plaintiffs were to deliver said iron, “ the first hundred tons in ten days from that date, and the balance in one hundred ton lots, at intervals of ten days.” The answer avers that the plaintiffs never, in any instance, delivered any of said iron at Brooklyn, but delivered it at Elizabethport, Hew Jersey, against the wishes and without the consent of the defendant, and thereby obliged the defendant to send for it, to his great loss and expense. This is the substance of the defence set up in the answer. There may be some informality in its statement, but it is sufficiently stated to apprize the plaintiffs of the defence intended. I incline to think that the defendant was at liberty to prove this defence, and that the giving of the notes did not necessarily and conclusively waive it. (Barber a. Rose, 5 Hill, 76; Allaire a. Whitney, 1 Ib., 484; McKnight a. Dunlop, 5 N. Y. (1 Seld.), 537, 544; Bowman a. Teall, 23 Wend., 306.) The answer avers that the iron was delivered there without the defendant’s consent, to his great damage. This may be proved to be true, though the transaction, as presented by the giving of the notes after the delivery, looks strongly the other way. Judgment reversed. [339] Clerke, J. Even partial payment does not estop a party from setting up his defence to the demand. A fortiori, the giving of a bill of exchange, or the acceptance of it, cannot have that effect. (See Lounsbury a. Depew, 28 Barb., 44.) Sutherland, J., concurred. Judgment reversed, and new trial ordered.