Blaney v. Pelton

The opinion of the court was delivered by Powers, J. This is an action of assumpsit upon two notes made payable to the order of the Groodwillie-Wyman Co. The defence is an entire failure of consideration. When the plaintiff produced the notes in court, and proved [279] tbeir execution, be made out a prima facie right of recovery. The holder of negotiable paper is presumed, in the first instance, to be a bona fide holder. If the defendant offers evidence tending to prove fraud in obtaining the note, or an entire failure of consideration for it between the original parties, the burden of proof is thereby cast upon the plaintiff to show that he was an innocent purchaser, for value, of the notes while they were current. This burden, however, is not cast upon the plaintiff until the consideration is impeached by the defendant. Hence no inquiry into the title of Robinson or the plaintiff is demanded until it is made necessary by the state of the defendant’s case. This case is quite unlike Cragin v. Fowler, 34 Vt. 326, and Clough v. Patrick, 37 Vt. 421, cited by defendant. In those cases the thing purchased had no value whatever. The rule was stated by Judge Pierpoint in Cragin’s case as follows : < ‘ The party has the right to that for which he bargained substantially, and it must be of some value or he is not bound to pay for it.” If the article bought. does not fully come up to the representations of the vendor, but still is an .article of the kind bargained for, and will perform the work for which it is designed, though less efficiently than represented, the purchaser in a proper case'may have his action for deceit or false warranty. But this comes far short of the elements essential to the defence of an entire failure of consideration. In Cragin’s case the machine was bought as and for a machine to be operated by horse power. It could not be operated at all by that power. If this press had been bought as and for a steam-power press, but could be operated only by hand power, the case would be parallel with Cragin’s case. The press, however, worked in the manner contemplated by the purchaser, and he only complains that it will not do the -work contemplated so well and so advantageously as the vendor represented. The defendant used it for several months doing the precise [280] kind of work for which it was purchased, though it came short of his expectations, and finally exchanged it for another machine, realizing in the exchange more for the press than he was to pay for it. It would seem rather novel to hold that a purchaser, wdio gets his money back for an article he buys, can claim that he received no value. The defendant’s own testimony disclosed this state of facts; hence, no duty was cast upon the plaintiff to fortify his title to the notes beyond the presumption arising from his holding them. Judgment affirmed.