Rasberry v. Moye

Mr. Justice FisheR delivered the opinion of the court. The only question in this case necessary to be decided is, Whether a partial failure of consideration can be set up in an action on a promissory note or bill single. This defence can be made in cases upon instruments for a sum certain, if introduced under a special plea. This point appears to have been so decided by this court in the case of Brewer v. Harris, 2 S. & M. 87, 88; Harman v. Sanderson, 6 Ib. 42. Where a party makes a defence of only a partial failure of consideration, an offer to return the article purchased is not necessary. The instructions asked by the defendant below were too broad for the testimony, except the eighth. This instruction [322] is correct as an abstract question, but must be construed with the testimony in the cause; and the jury must say from the evidence, whether the defendant is entitled to the benefit of the rule of law in this case. Judgment reversed. New trial granted.