Richardson v. Sanborn

Redfield, Ch. J. The only question reserved in the present case is whether the testimony offered by the defendant, at the trial, should have been received, as tending to establish a good defence to the action. We must, in determining this question take the' testimony as it was offered and claimed, at the trial, provided it has any legal tendency to establish the facts claimed. We could not give the excepting party the benefit of a supposable construction of the testimony, which he did not claim in the court below, for the reason, that if he had presented that question, or view, at the trial, the objection might not have been insisted upon, or if so, the testimony might not have been rejected by the court. The defence is stated by the exceptions to be an offer to show a partial failure of the consideration of the note, by reason of the fraud and false warranty of the horse, “ which should go in reduction of the amount to be recovered on said note, the extent of such reduction to be ascertained and estimated by the jury,upon the evidence.” It has been too often decided, in this court, that the partial failure of the consideration of a promissory note, being merely unliquidated, and subject to the estimation of a jury, cannot bo received to reduce the amount of the recovery, to be now brought in question. Burton v. Schemerhorn, 21 Vt. 289. The point has been often ruled the same way in other cases. It is useless to speculate, in regard to any other questions, which might, or might not, arise upon the evidence, as we can only revise such questions as were there raised and decided, and the case stated expressly that this was the only one. Judgment affirmed.