Burton v. Schermerhorn

The opinion of the court was delivered by Kellogg, J. The court below, having decided, that the evidence offered by the defendant did not amount to a defence to the suit, rejected the same ; and the question presented for the considation of this court is, whether there was error in that decision. That the testimony offered and excluded, did not tend to prove a total failure of the consideration, upon which the note was founded, is quite apparent, upon examination of the case, and was so conceded at the argument; nor does the case disclose any evidence of a rescission of the contract. That the evidence tended to show a partial failure of consideration is admitted; and the question arises, was the defendant entitled to avail himself of this, as a defence to the suit, for the purpose of reducing the damages? We think he was not. We are aware, that there is some conflict-of authority in the neighboring states upon this question. But in this state it has been uniformly held, that a partial failure of consideration eannot be set up as a defence to a suit upon the contract. In Stone v. Peake, 16 Vt., it was held, that, in a suit upon a note, when there has not been an entire failure of consideration, and no offer made by the defendant to rescind the contract, he cannot set up as a defence, that there was fraud in the contract, on which the note was given, — especially when the damages are unliquidated. That case appears to be analogous to and entirely decisive of the case at bar. Had there been an entire failure of consideration, or & partial failure, with an offer to rescind the contract, the defendant, by establishing such facts, might successfully defend against the note. But no such case is made by the bill of exceptions. There was no error in the proceedings of the county court and their judgment is affirmed. Bennett, J., being related to one of the parties, did not sit upon the trial of the case.