Bynum v. Sledge

Collier, J. From the bill, answer, and proofs, these facts may be gathered : that the defendant, in October, 1824, made his note to the plaintiff, Sims, for the sum of two hundred and fourteen dollars; that the consideration therefor, was the purchase of a cotton gin by tho defendant of Sims, which at tho time of the sale ho warranted to be of a very good quality, and that the saws were made of steel plate, and that if they were not, ho would take it back and furnish one of the quality stipulated; or would make it such. It further appears that the saws were not of such a quality as they were warranted to be, but were almost valueless, of which Sims had .notitr; and attempted [137] to make them such, as he promised they should be,, hut failed, and some' time after, the girt was destroyed by fire. Bynum in his answer, states, that he ascertained from the defendant, before he became the proprietor of the note, that no objection would be made to its payment, (hut of this there is no proof); whereupon he became the assignee thereof, and recovered a judgment upon it. The defendant attempted to defend himself at law, by proving the foregoing facts, but was not permitted to shew them, on the ground that they -would not defeat a recovery in tolo, but only partially diminish it. The decree perpetually enjoins the collection of the. sum of eighty-five dollars, at the cost of the defendant; and in this, it is alleged, the Court below erred. The agreement of Sims obliged him either to make the gin, which he furnished, such as he- promised it should he, or else take it back, and furnish one corresponding with the contract. The- obligation- upoib the defendant was to advise Sims of any defect in the gin, that he might either improve it, or place another' in its stead'. Sims, it appears, had notice of the deficiency, and attempted to remove it, in which he failed : the defendant was not obliiged to- advise him that his attempt had proved abortive ; but it was incumbent upon him, at his peril, to observe the result of his efforts to improve it. It is immaterial whether Sims received notice directly from the defendant, for he recognised by his acts that he had such notice as. he required. It is true that the defendants’ remedy was adequate at law; yet it was not so understood at the time of the trial. The prevailing opinion both of the [138] bench and the bar was, that a defendant could not be heard to allege that the consideration of a contract had partially failed to an unliquidated amount. tip-on the ground then, that the defence was not well ascertained at law, the jurisdiction of equity is clearly maintainable.-Ludlow vs. Simond,a-Livingston vs. Livingston,b-Ellis vs. Bibb,c in this Court, at July term, 1829. If the answer of Bynum, so far as it states a promise on the part of the defendant, to pay him the note if he became the proprietor, was sustained by evidence, the defendant would have no equity as against him : but this statement is irresponsive to any allegation in the bill; and before it can avail any thing, should be proved.-(Lucas vs. The Darien Bank,d decided in this Court, January Term, 1830.) The decree is affirmed, with costs. Footnotes [a] 2 Caines' Cas. 1. [b] 4 Johns. Ch. R. 287. [c] 2 Stew. 63 [d] 2 Stewt. 280.