Stever v. Lamoure

By the Court, Beardsley, J. The agreement given in evidence was, what is called a chattel note, and was admissible in evidence under the money count in the declaration. (Crandal v. Bradley, 7 Wend., 311.) The objection that it varied from the instrument set out in the special count was therefore properly overruled. It was unnecessary for the plaintiff to give evidence of . the value of such a waggon as is described in the note. The defendant promised it should be a good, new, lumber waggon, in all- respects complete; and the price is stated at sixty dollars. It was paid for in advance, and if the defendant failed to deliver the waggon as agreed, the plaintiff was entitled to recover the sixty dollars. (Rockwell v. Rockwell, 4 Hill, 164; Pinney v. Gleason, 5 Wend., 393.) There was nothing in the case which called for proof, in the first instance, of any consideration for the note, beyond what is expressed on its face. It purports to be given for value received, and, although the special count in the declaration alleges that the consideration was a bay mare, and the testimony shows it to have been the mare and an order and a note, still this variance was of no consequence. The note was in evidence under the money count, and properly so, and that disposes of every thing connected with the question of variance. This agreement was to pay sixty dollars in a waggon at a certain time and place, and no demand on the part of the plaintiff was necessary to entitle him to bring suit. If the waggon was ready at the time and place, that was matter of defence to be proved by the defendant. It was prov.ed that the mare sold by the plaintiff to the [357] defendant was part of the consideration of this note, and on the trial the defendant offered to show that the plaintiff “ warranted her to be true, gentle, orderly and sound, when in truth and in fact the said mare at the time was untrue, disorderly and unsound.” The defendant also offered to . prove fraud on the part of the plaintiff in the sale of said mare. On objection by the plaintiff’s counsel the testimony was excluded by the judge, on the ground, as is stated in the case, that the notice of defence was insufficient to authorize the evidence to be given, as the mare was of considerable value notwithstanding the alleged defects. It was not pretended that the defendant had returned the mare to the plaintiff, or offered to return her, on the discovery of the alleged fraud, or that she was at the time of the trade, of no value whatever. The testimony was therefore admissible, if at all, to reduce the amount which the plaintiff would otherwise recover and not in bar of the action. But neither a breach of warranty or fraud in the sale can be shown for such a purpose, unless a proper notice of the defence is given. This point has been questioned but should be regarded as settled in this court. (Barber v. Rose, 5 Hill, 76.) As the testimony was rejected on the ground that the notice was defective, the only question, on this part of the case, is as to the sufficiency of thé notice. It sets up a breach of contract in the sale of the mare, in this, to wit, the plaintiff represented her “ to be true, gentle, orderly and sound, when in truth and in fact ” she was “ untrue, disorderly and unsound, and much older than represented.” Nothing is said of any fraud in the sale, or, in terms, of a warranty, for a representation is not, necessarily, a warranty; nor is it suggested in the notice, that the plaintiff was aware that his representation was in any respect untrue. The notice, therefore, is wholly defective; it sets up neither fraud or breach of warranty, and the judge was correct in excluding the testimony offered under it. The motion for a new trial should be denied.