Henderson v. Ward

The opinion of the court was delivered by Bennett, J. We think the defendant must fail in his defense to the note. The referee fails to find any express warranty, or any fraud, and this is not a case of an implied warranty. It was not a sale of tea by sample, and the note not given from four to ten days after the teas had been delivered, and the report finds that the quality of the tea might have been readily ascertained upon inspection, and that before the defendant gave his note he had sold and distributed several packages of it, though he had not, when he gave his note, then ascertained that the tea was not adapted to his trade. Though the defendant had laid the teas aside, and notified the plaintiff they would not answer his purpose; yet there was no attempt on his part to rescind the contract by returning the teas, and it is not perceived that he could have any such right. In the absence then, of an express or an implied warranty, and of all [435] fraud in the sale of the teas, we think the plaintiff must have judgment for the full amount of the note. There is no pretence of an entire failure of consideration. The most the defendant can claim, is only a partial failure of consideration, and if such had been the fact, the sum to be deducted from the note, would have been uncertain, and it has been frequently held in this state, that when the action is upon the note, and a claim for a deduction upon the ground of a partial failure of consideration rests in a claim which is uncertain in amount, and cannot be rendered certain, it is not a proper case for an apportionment. If the defendant has a valid claim for uncertain damages he must resort to his cross action or to his declaration by way of set off. But as, in this case, there was no fraud, and no warranty, express or implied, we do not see any ground to found a legal claim upon. The judgment of the county court is reversed, and judgment for the plaintiff for the full amount of the note.