Bischof v. Lucas

Stuart, J. This case is similar to the preceding one of Bischof v. Coffelt, ante, p. 23. Here, however, the general issue is not sworn to. Trial by the Court. Finding and judgment for the defendant, Lucas. The evidence is all properly in the record, which, by agreement, is composed partly of the evidence given to the jury in the other case. The note sued upon was given to Billingheimer, for a parcel of the “French broadcloth” spoken of in the Coffett case. A series of similar misrepresentations were made as to the character and value of the cloth. The same kind of evidence in relation to other sales made to other persons, but of which Lucas in this casé, like Coffett in the former, had no knowledge, was permitted to be given. Of course these transactions had no influ [27] ence on the purchaser. For the reasons given in the preceding case, it was error to admit them. J. P. Usher, for the plaintiff. G. G. Durm, for the defendant. The only other new element in this case to distinguish it from that, is the introduction of evidence to show that, after suit brought, the defendant had paid 40 dollars or so. This matter we conceive stands thus. The defendant having kept the cloth, neither returning nor offering to return it in a reasonable time, was bound to pay for it. In defence he could show a partial failure of consideration, on account of the inferior quality of the cloth. This defence grew out of the fact that, not being a judge of the article himself and not pretending to be, he confided in the representations of the payee of the note. He was, however, liable to the assignee for whatever the cloth was worth. If after suit brought he had paid the note or any part of it, he had a right to show that fact, not in bar, but in mitigation of damages. In the case of The Bank v. Brackett, 4 N. H. 557, the course of decision on this point is fully investigated, and it is held that payment after suit brought is admissible in evidence to reduce the damages. Numerous decisions are there cited to that effect. In Bischof v. Coffelt, the evidence in relation to the execution of the note warranted the jury in finding a verdict for the defendant. And the note being out of the way, the assignee could not recover on the common counts for the value of the cloth. Here the note is valid, subject only to the effect of a defence of partial failure of consideration. On the former, the evidence erroneously introduced could have had no influence. The verdict was right independent of it. On the latter the tendency was to mislead, and to excite prejudice. Per Curiam. The judgment is reversed with costs. Cause remanded, &c.