Bryant v. Sears

Catón, J. This action was brought upon a promissory note, by the assignee, to whom it was transferred before it became due. The defendant pleaded two pleas of total failure of consideration, to which a demurrer was filed by the plaintiffs, and sustained by the court, which decision is now assigned for error. The first plea avers, that the defendant purchased certain goods of Harwood and Fletcher, and also their good will as druggists, in the town of Middleport, for the term of two years; and for and in consideration that Harwood and Fletcher would bind themselves not to deal in drugs, in Middleport, for said two years, and that they would assign to the defendant their agencies for the patent medicines which they had placed in the hands of defendant; and also, in consideration that they would use their best influence and exertions to procure the owners of those patent medicines to transfer the agencies thereof to the defendant; the said defendant paid the said Harwood and Fletcher, the sum of $200, and executed the note sued on, and another note of, one hundred dollars. The plea further avers, that at the same time of the execution of the notes, and the payment of the two hundred dollars, Harwood and Fletcher executed their agreement in writing to the defendant, which is set out in the plea in hcec verba, wherein they agree not to go into the drug business, and to transfer the agencies of the patent medicines, and to use their endeavors to procure the owners thereof to do so substantially, as is previously alleged in the plea. The plea then shows, that Harwood and Fletcher violated this agreement in every particular, by which, the defendant was damaged to the amount of one thousand dollars, whereby the consideration of the note had failed, etc., of which the plaintiffs had notice. The second plea was like the first, except that it sets out the written agreement of Harwood and Fletcher, according to its legal effect, instead of reciting it verbatim, as in the first plea. These pleas were evidently misapprehended by the circuit court, as they have been by counsel here. They do not, as was supposed, show that the stock of goods, the purchase of which is stated in the introductory part of the plea, formed any part of the consideration of the note. The purchase of the stock of goods is stated by way of inducement, but appears to have been a distinct transaction, and so far as appears in the plea, the goods were paid for, or were to be paid for, in some other way. The two hundred dollars in cash, and the two notes, were given, not for the stock of goods, but for the good will of the trade, and the undertaking of Harwood and Fletcher to use their exertions to procure for the defendant, the agencies of the patent medicines. This is the express averment of the ¡fleas, and no other consideration is intimated in the pleas, nor could any other have existed, if the pleas are true. This consideration for which the note was thus given, is shown to have failed, of which, the plaintiffs had notice at the time of the assignment to them. • When carefully examined, and properly understood, these pleas show a perfect defense to the note, under our statute, and the demurrer should have been overruled. The judgment must be reversed and the cause remanded. Judgment reversed.