Riddle v. Gage

Partial failure of consideration is, pro tanto, a good defence to a promissory note, where the sum to bo deducted can he ascertained by mere computation ; hut it is otherwise where the amount to he deducted is unliquidated. "Where a note was given for §1,200, for seventeen articles of machinery, with no separate valuation, and five of the articles were at the time under a valid attachment against the vendor, which were afterwards sold upoa an execution recovered in the suit in which the attachment was made — -Held, that, there being no specific price fixed to the articles at the time of the purchase, but their value being unliquidated, the plaintiff should have judgment for the whole note. Matters addressed to, and within the discretion of the court below, will not be revised by the court above, unless transferred for that purpose.

Assumpsit, on a promissory note for $1,200, dated January 13, 1849, signed by tbe defendant, payable to one Hall, and by him indorsed to tbe plaintiff. Tbe defendant filed a confession as to part, to wit, $600, and as to tbe rest pleaded tbe general issue. The plaintiff, having produced tbe note declared on, and its signature being admitted, rested bis case. Tbe defendant’s counsel, in opening, stated that be should prove that tbe note was given for a quantity of machinery sold by Hall to tbe defendant; that a portion of said machinery, being known by tbe parties to be under attachment at tbe suit of a creditor against Hall, at tbe time of tbe sale, Hall agreed to pay tbe debt to secure which tbe attachment was made, and so release tbe machinery from said attachment: that be failed to do so, and that tbe machinery attached was sold in May, 1850, for $605, to satisfy tbe judgment in said suit and costs ; that the note at the time it was made was indorsed to one Samuel I). Clark, as collateral security for having become surety on a note to tbe plaintiff, and a memorandum to that effect was made at tbe time at tbe bottom of tbe note, and signed by Hall & Clark, or Clark alone, which was afterwards torn off without tbe knowledge of tbe defendant ; that in October, 1852, tbe plaintiff, before he received tbe note, if at all, came to tbe defendant’s attorney, who wrote said bill of sale, note and memorandum, and inquired ábout tbe note and responsibility of tbe defendant, and was then notified of the consideration and of tbe facts above stated, and that tbe defendant would not pay said note unless be was obliged to. The bill of sale of said machinery describes it under some seventeen different items, with no separate valuation or prices, but as all sold for $1200. Five articles of said machinery were sold to satisfy said judgment and costs, as aforesaid. These facts being, for the purposes of the trial, admitted, the counsel for the plaintiff contended, and the court ruled, that they constituted no defence to this action for the amount not confessed, the partial failure of consideration being for an amount unliquidated. The defendant’s counsel then filed the following motion, to wit: The defendant moves that the cause may be continued, or entry of judgment stayed, until a suit can be brought against Hall, and the damages be liquidated, and then be deducted from the amount of the note, Hall being insolvent, and the plaintiff having taken the note long after it was over due, and with full notice of the partial failure of the consideration, and the objections that such a defence could not be gone into in this suit not having been taken until this time. The court overruled the motion for continuance, because there was no evidence that the defendant was surprised by the position of the plaintiff taken on the trial, or that the defendant could meet that portion better at a future day. And the court overruled the motion for a stay of the entry of judgment, as not being in order at this stage of proceedings, if well founded in fact. The writ in this suit was dated April 3, 1854. A plea and confession of part of said claim sued was filed by the defendant, December 7, 1854, and a second confession was filed November 18, 1856, of a part of said claim. To these several rulings the defendant excepted. A verdict for the plaintiff was taken by direction of the court for the full amount of the note, and the defendant moved that the same be set aside, and for a new trial.