Sill v. Rood

Per Curiam. The only question in this case is, whether, under the plea of non assumpsit, it is competent to give in evidence that the note was fraudulently procured, or that it was given without consideration. The evidence offered, and which was excluded, was, that the notes in question were given in payment for a shearing machine sold by the plaintiff to the defendant; that the plaintiff made certain representations with respect to the usefulness of the machine, which were utterly false, and that known to him at the time; and that thé machine was, in fact, worth nothing, and totally useless. This evidence was overruled, on the ground that a special plea or notice under the general issue was necessary in order to let in such defence. The cases on this subject do not seem to warrant so rigid a rule. The rule as laid down by Chitty, (1 Chitty Pl. 472.) and which is sanctioned by adjudged cases, is, that under the general issue of non assumpsit any matter may he given in evidence which shows that the plaintiff never had cause of action; and that under that plea most matters in discharge of the action, which show that at the time of the commencement of the suit the plaintiff had no subsisting cause of action, may he taken advantage of under the general issue. This rule has been expressly sanctioned by the court in the case of Wilt v. Ogden, (13 Johns. Rep. 56.) If the notes in question were procured upon such fraudulent representations, they were utterly void, and without consideration, and there never was any cause of action. The case of Runyan v. Nichols, (11 Johns. Rep. 547.) was not like the present: the defence there set up was considered as going only to reduce the amount of the plaintiff’s claim, and not to destroy the cause of action entirely.(a) It was a case peculiar in its circumstances, and [232] cannot be considered as establishing any general rule. The Ter¿jc(; mus(; be set aside, and a new trial awarded, with costs, to abide the event of the suit. New trial granted. Footnotes [(a)] That was an action by an attorney to recover his costs, and the defendant offered to show negligence in the conduct of the suit. In Tempter v. M'Lachlan, (5 Bos. & Pull. (2 N. R.) 136.) such a defence was not allowed under the general issue, though Mansfield, Ch. J. seemed to think that i£ might be admitted,if the negligence was so great as to deprive the defendant of all benefit from the suit. In Mills v. Bainbridge, there cited by Shepherd, arguendo, Lord Ellenborougk is said to have ruled, thatin an action for freight of goods, the defendant could notgive in evidence the injury the goods had sustained by bad stowage, but mustresort to his cross actiop0 There can be no doubt, that if admissible at all as a defence, it may be made under the general issue in assumpsit; but the;difficulty is, that by admitting such a defence the plaintiff may, in some cases, be taken by surprise, contrary to the just [232] principle of pleading, which requires that the facts on which the party relies should be stated so as to apprise the opposite party of what is meant to be proved, in order that he may be prepared to answer or contest it. (1 Chitty Pl. 215. 472.) In Basten v. Butler, (7 East, 479.) which was an action for work and labour, &c. Lord Ellen-borough seeme.dto think that there was a distinction between an action for a specific sum agreed on, and where the plaintiff proceeded on a quantum meruit $ that in the latter case, the plaintiff must come prepared to prove that he has not only done the work, but that he ought to have so much for it, and, therefore, could not be surprised by sucha defence. But Lawrence, J. thought that seven in the first case the defendant ought to be let into the defence, if he had given the plaintiff notice that he «leant to dispute the goodness or value of the work done. And Le Blanc, J. was of opinion, that in either case, the plaintiff ought to come prepared to show that he had done his work properly according to his contract. In Farnsworth v. Garrard, (1 Campb. N. P. Rep. 38.) Lord Ellenborpugh said, there had been considerable doubt gn this pgjnt, and that he had ruled in deference to the authority of Mr. J. Buller, (7 East, 480, 481. notes.) but having since conferred witji the judges, he considered the correct rule to be, that if there has been no beneficial service, there should be no pay; but if some benefit has been derived, though not to the extent expected, it should go to the amount of the plaintiff’s demand, leaving the defendant to his action for negligence. In Fisher v. Samuda, (1 Camp. N. P. Rep. 190.) which was an action by a buyer against the purchaser to recover damages for the bad quality of die article spld as sound apd good, and who had been sued for the price by the seller, and made no defence, but suffered judgment to pass by default, Lord Ellenborovgk said the plaintiff ought to have made his defence in the original action, and given in evidence the bad quality of the article supplied, either m answer to the whole demand, or in abatement of the damages. That where there is an opportunity to do final and complete justice between the parties, there ought not to be a second, or cross-suit. (Et vide Dickson v. Clifton, 2 Wils. 319. Brown v. Davis, Duffet v. James, King v. Barton, Cormach v. Gillis, cited 7 Term Rep. 480, 481. and notes, and 1 Campb. 40. notes. Beecker v. Vrooman, 13 Johns. Rep. 302. Jones v. Scriven, 8 Johns. Rep. 453. Grant v. Button, 14 Johns. Rep. 377.)