Wentworth v. Dows

In an action on a promissory note by the payee against the maker, the answer set •up want of consideration. It appeared in evidence that the plaintiff made for the defendant six marble cases for soda fountains, under a verbal contract; that they were not as good as specified in the contract, there being imperfections in them stopped by wax and not at first seen. The defendant paid for four of these cases, and afterwards gave the note in suit for the remaining cases and other goods. The defendant requested the court to instruct the jury that if they found that the six cases were an entire contract, and that a part of the cases were included in the settlement for which the note was given, the jury were to consider the damage on the whole contract. Held, that this instruction was rightly refused. Held, also, that evidence of the lessened value of the cases, by reason of the imperfections, was inadmissible. Where in an action by the payee against the maker of a promissory note given for the price of goods the only defence set up in the answer is want of consideration, it is not competent for the maker to prove in reduction of damages either a breach of warranty or a fraudulent representation in the sale of the goods.

Contract upon a promissory note made by the defendants and payable to the plaintiffs. The answer denied the making of the note or any debt due the plaintiffs; set up a want of consideration ; and alleged that if the plaintiffs should prove the making of the note, “ then the defendants will prove that said note was given in payment for certain marble cases sold by the plaintiffs to the defendants and recommended by the plaintiffs to be of excellent quality, sound and proper to be used in the manufacture of soda fountains by the defendants ; ” that the said marble slabs “ were not sound, and were altogether unfit for the use for which the defendants bought said marble by reason of said recommendation, and thereby the defendants have been put to great loss and trouble.” Trial in the Superior Court before Pitman, J., who allowed a bill of exceptions in substance as follows : The execution and delivery of the note Were admitted. The defendants set up a want of consideration. The plaintiffs, who were marble workers, manufactured for and sold to the defendants marble cases, to be fitted up by the defendants for soda fountains. The note was given in payment for cases and other goods, delivered in April, 1873. There was evidence tending to show that among other things, the plaintiffs made six cases of Escalón marble, upon an especial verbal contract, two cases of which were the last delivered, and were included in the April bill, settled by the note in question. There was also evidence tending to show that the six cases were very imperfect and not as good as specified in the verba, contract; that the slabs were badly cracked and cemented together; that there were many holes in the marble, stopped up with wax; that at first the imperfections were not seen, but afterwards became very plain. The plaintiffs, on these points, offered evidence to the contrary. It was also shown in evidence that these cases were the groundwork and the smaller part of the cost in the manufacture of the fountains ; and the defendants added thereto other appliances and fixtures, in completing the manufacture of their apparatus. The defendants’ counsel asked William H. Collins, a witness for the defendants, the following question : “ How much less in value, by reason of these imperfections, was the whole apparatus worth ? ” The judge ruled that the defendants could not ask the witness that question. The defendants also asked the judge to give the following instructions to the jury : “ That if the jury find that the six cases were an entire contract, and that a part of the cases were included in the settlement for which the note in question was given, then the jury were to consider the damage on the whole contract.” The judge refused to give the instruction asked for. Other appropriate instructions were given, to which no exception was taken. The jury returned a verdict for the plaintiffs; and the defendants alleged exceptions.