Sawyer v. Chambers

By the Court, Ingraham, P. J. The defense set up in this case must be considered as sufficiently alleged in the answer, as the answer was amended by the court, to embrace the facts so stated. Whether this is to be considered an offer to show a total or partial failure of consideration between the plaintiffs and the makers, is immaterial. Between the original parties such a defense is admissible. The offer was to show that the whole consideration of the note, or the greater part of it, had failed ; that the note was given on account of the goods, which the plaintiffs had agreed to sell to the company; that only a small portion of such goods had been delivered ; and that the amounts so delivered had been actually paid for. I am at a loss to see any ground on which this evidence could be excluded. Surely, an accommodation indorser is in no worse condition than the maker. He has a right to any defense which the maker could avail himself of. If the makers had been sued upon the note, they could have shown that the note was given on account of goods to be delivered, and that such goods had never been received. The plaintiffs, under such proof, would have no claim against the defendants, as the note would be without consideration. So long as the courts permit the consideration of a note to be inquired into, under any circumstances, the facts presented in the defend [45] ants’ offers must come within such a rule. The plaintiffs have no right to recover on this note, from any of the parties, any thing more than enough to indemnify them for the duck sold or thereafter delivered to the company ; and the defense that no such amount of duck had ever been delivered should not have been excluded. The plaintiffs’ counsel has urged to us that a partial failure of consideration can not be given in evidence to defeat a recovery upon a note, and cites 17 N. Y. Rep. 101, and Id. 230, and other cases. Both of these cases were on notes held by bona fide holders to whom the same had been transferred after the contract was made, and who had no knowledge thereof. I know of no such rule as applicable to the original parties, unless the strict rule is applied which prevents the admission of parol evidence to vary written contracts. This rule has not been applied to proof of the consideration of a promissory note. Another objection of the plaintiffs is, that the exception is too general, and, although part of the defendant’s offer was good, still he excepted to the conclusion of the court upon the whole defense, instead of making specific exceptions. All the cases cited by the plaintiff in support of this point were cases of exceptions to the whole of the judge’s charge. But that is not this case. The defendant opened his defense to the jury, and the judge ruled that he had - no defense ; to which the defendant excepted. There was but one question, viz : whether in the matters stated the defendant had stated a defense. If he had, the judge erred in excluding it. It was not necessary for the defendant’s counsel to repeat the statements again, and to take a separate ruling on each. The probability is, that separately, each of the propositions might have been insufficient, and that it was only by grouping them together that the defense could be made out. The purpose for which the note was given, the non-payment of the consideration either in property or money, the failure to perform by delivering the goods, and knowledge on the part of the [46] holders, were all necessary to he shown to make out the defense; and all the matters offered were necessary for that purpose. But whether so of not, the rule relied on by the plaintiffs’ counsel does not apply to a case where the judge excludes the defense on the opening of the counsel. There the question is whether in what is offered there is any defense ; and if the judge excludes the whole defense, one exception thereto is good. [New York General Term, May 2, 1865. Judgment should he reversed, and a new trial ordered ; costs to abide the event. Ingraham, Clarice and Geo. G. Barnard, Justices.]