People ex rel. Fleming v. Niagara C. P.

[247] By the Court, Sutherland, J. A total and entire failure of consideration, on the ground of fraud or otherwise may be given in evidence under the general issue without notice; but a partial failure cannot be given in evidence without special notice; it does not go to the foundation of the action, and show that the plaintiff is not entitled to recover any thing, but is merely in mitigation of damages. Spalding v. Vandercook, 2 Wendell, 431. Burton v. Stewart, 3 id. 238. Reab v. M’Alister, 8 id. 109. In this case there was no notice given, and the offer, I think, cannot be considered as going to the whole consideration ; it was simply that the plaintiff was guilty of fraud and deceit in the sale of the hats which were the consideration of the note, and that the note was therefore fraudulent and void. Now there might have been both fraud and deceit in the sale, and still the hats been of considerable value. I think the evidence was therefore properly rejected by the referees, and the court of common pleas erred in directing-' their report to be set aside. Peremptory mandamus ordered.