Murray v. Whitcomb

Bingham, J.

We understand that the land purchased, but not conveyed to the extent of its value, increased the sum for which the note was given, and that there was a want of consideration for the note, to the extent of the value of the land not conveyed.

It is claimed that the contract was entire, and that it has never been rescinded — Way v. Cutting, 17 N. H. 451; that the defendants still hold the deed of the lands conveyed, and, as the failure is only partial, and the value of the land omitted cannot be determined by computation, no deduction can be made from the note.

Sanborn v. Osgood, 16 N. H. 112;

Drew v. Towle, 27 N. H. 412;

Riddle v. Gage, 37 N. H. 519.

At common law, we think that the plaintiff’s view is correct. But under the statute.of 1861 (Gen. St., c.

201, s.

11) it is provided, that when, in an action upon a promissory note, a total want or failure of consideration would be a defence, a partial want or failure of consideration may be proved in reduction of damages, under a brief statement.

Nichols v. Hunton, 45 N. H. 470;

Butler v. Northumberland, 50 N. H. 33;

Swain v. Saltmarsh, 54 N. H. 9.

This proceeding is to enforce the collection of the note secured by the mortgage. If there is nothing due upon the note, the mortgage is discharged.

Bowman v. Manter, 33 N. H. 530 ; Sanborn v. Sanborn, *51 41 N. H. 306;

Furbush v. Goodwin, 25 N. H. 426. Tins is an action upon a promissory note, within the meaning of the statute, and a sum equal to the value of the land omitted in the conveyance may be deducted from the note.

Exceptions sustained, and judgment reversed.