Wilt & Green v. Ogden

Per Curiam. ,The principal question, in this case, is, whether the defence set up on the part of the defendant, and received by the judge, was admissible under the general issue. The note upon' which the action is founded, Was to be paid iri drawing plaster from Ithaca to Owego, and the defence was an offer of performance on the part of the defendant. From the testimony it very ■. satisfactorily appeared that every thing was done by. the defendant, which could be required of him, towards a performance of his contract, and that the non-performance was attributable solely to the neglect or default of the plaintiffs. This defence was proper and admissible under the general issue; it went to show that the plaintiffs riever.had any cause of action against the defendant. The contract necessarily "implied that the plaintiffs were to have the plaster at Ithaca, ready to transport. This Was in the nature of a condition precedent, and1, from the evidence, it appears not only that the defendant went repeatedly for the purpose of transporting the plaster, the delivery of which was refused, but that for some weeks before the expiration of the time limited for the performance, the plaintiffs had no plaster at Ithaca. Any matter which shows that the plaintiffs never had any cause of action may be 58 ¿iven in evidence under the general issue; and, at this day, títo'sí . ¿tatters in discharge of the action, which show that, at the timé of the- commencement of the suit, there was no Subsisting causé of action, may be taken advantage of under this .issue. (1 Chilt. on Plead. 472.) If the evidence was admissible under the. general issue, it is not pretended that it did not amount' to a de* fence- againstithe counts upon the note itself ; and if so,-there can be no colour for the claim’ of the plaintiff to waive the note, - and recover back the original consideration* Here is no- failure ■ of proof-of the .special contract; it is 'proved precisely- as laid in the declaration; and to ¿llow the plaintiffs to waive it, and recover, back the consideration, would be permitting them entirely to change the- contract, and recover in money when- payment Va-s to be made in the performance of services ; and this, too, without any default on the part of the defendant. Judgment of nonsuit must, therefore, be entered according to the stipulation ‘in the case. . -. ■