Norris v. Spofford

Soule, J. The parties agree that a contract was made between them, by which the plaintiff was to sell his horse and diamonds to the defendant. The controversy is as to the consideration for that sale. The plaintiff introduced evidence tending to prove that he was to receive in payment a horse called Little Med, and that the defendant fraudulently delivered to him a horse of much less value. The defendant, admitting that he delivered the less valuable horse, contends that the bargain was for that horse, and not for Little Med, and introduced evident e tending to prove this. The evidence being conflicting as to what the contract was, it was competent for the defendant to show that the value of the property which he was to receive, and did receive, in accordance with the bargain made, was, and was known to the parties to be, far less than the value of Little Med. This fact, if proved, would have a tendency to show that probably the contract was not for the sale of the more valuable [86] horse to the plaintiff, but for the sale of the horse which he actually received; and so, that the plaintiff has no cause of action. Bradbury v. Dwight, 3 Met. 31. Lee v. Wheeler, 11 Gray, 236. Rennell v. Kimball, 5 Allen, 356. Parker v. Coburn, 10 Allen, 82. Upton v. Winchester, 106 Mass. 330. Brewer v. Housatonic Railroad, 107 Mass. 277. The learned judge who tried the case in the Superior Court erred, therefore, in rejecting the evidence offered by the defendant on this point. Exceptions sustained.