Russell v. Rood

Start, J. The action not being between the original parties to the note, the evidence offered by the defendant was properly excluded. The defendant did not offer to rescind the contract, and the evidence would only tend to show a breach of the contract and a partial failure of consideration; therefore, the offer was not within the provision of Y. S. 1152, which provides that, in actions between the original- parties to a note, the defendant may show partial failure of consideration. This statute only applies to actions between the maker and payee of the note as shown by the note itself. Hoyt v. McNally, 66 Vt. 38; Burgess v. Nash, 66 Vt. 44; Thrall v. Horton, 44 Vt. 386. Judgment affirmed. Taft, C. J., and Watson, J., dissent.