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the purchase money, in the sale of real as well as of personal estates, a

In cases where the consideration had totally failed the English courts have admitted that fact to constitute a good defence between the original parties to a bill of exchange; though a partial failure of the consideration

is no defence.b But with us a partial as well as *474 total failure of the *consideration, may be given in

evidence by the maker of a note, to defeat or miti. gate, as the case may be, a recovery.c In Indiana, by statute, 1831, in actions upon specialty or other contract, excepting conveyances of real estate and paper, negotiable by the law merchant, the defendant, may allege the want or failure of consideration, in whole or in part. He may allege fraud or breach of warranty, and if he shows that the article was of no value, or had been returned or tendered, he destroys the action.d In North Carolina, a total failure of consideration may be given in evidence in a suit on a promissory note, though a partial failure cannot, and the relief is by a distinct suit. In equity, as well as at law, the defendant, for the purpose of preventing circuity of action, may show,

« Tucker v. Gordon, 4 Eq. Rep. S. C. 53. 58.

Morgan v. Richardson, 1 Camp. N. P. Rep. 40. n. Tye v. Gwynne, 2 Ibid. 346. Mann v. Lent, 10 Barnw. g Cress. 877.

• Hills v. Bannister, 8 Cowen's Rep. 31. Sill v. Rood, 15 Johnson, 230. Payne v. Cutler, 13 Wendell, 605. Cock v. Mix, 11 Conn. Rep. 432. Revised Statutes of Illinois, edit. 1833, p. 484. See Sup. p. 472–3, n. The cases from 8 and 20 Wendell, and 3 Hill. In Johnson v. Titus, 2 Hill's Rep. 606, mere inadequacy of consideration, without warranty or fraud, is no defence to a promissory note; but entire want of consideration is a defence to any executory contract. But again, in Scudder v. Andrews, 2 McLean's C. C. Rep. 464, it was held, upon what was deemed the weight of authority, that a total failure of consideration was a good defence to a promissory note between the original parties, though a partial failure would not be a defence.

Wynn v. Hiday, 2 Blackf. Ind. Rep. 123. In Georgia, by statute, 1836, partial failure of consideration in any contract, may be given in evi. dence.

• Washburn v. Picot, 3 Dev. Rep. 390. See supra, p. 472–3, note.

by way of defence, in order to lesson or defeat the recovery, a total or partial failure of consideration, as the case may be, when sued for the consideration of a sale or upon the security given for the purchase money. In Illinois by statute a want of title in the vendor of lands, may be set up by the vendee on the note given for the purchase money, as a failure of the consideration. So, the true value of articles sold may be shown in reduction of the price, even on a note given, as between the original parties, in cases of sales with warranty, or fraudulent representation, though the article has not been returned ; and this is allowed to avoid circuity of action.c

• Lewis v. Wilson, 1 Edw. N. Y. Ch. Rep. 305.

* Mason v. Wait, 4 Scammon, 127. The law allows a total or partial failure of consideration in every note or instrument for the payment of money or property to be set up as a defence. The object of the act is to prevent a multiplicity of actions. Duncan v. Charles, Id. 561.

• M'Allister v. Read, 4 Wendell's Rep. 483, S.C. 8 Ibid. 109. Miller v. Smith, 1 Mason's Rep. 437. Steigleman v. Jeffries, 1 S. & Rawle, 477. Beecken v. Vrooman, 13 Johnson, 302. See also, to the same point, Street v. Blay, 2 B. f Adolph. 456. Poulton v. Lattimore, 9 B. f Cress. 259. Pearson v. Wheeler, 1 Ryan f. Moody, 303. Harrington v. Shatton, 22 Pick. Rep. 510. In this last case, the authorities, pro and con, were extensively examined. In the two cases of Street v. Blay, and of Poulton v. Lattimore, it is settled, that where an article is warranted and the war. ranty not complied with, the vendee may refuse to receive the article at all, or he may receive it, and bring a cross action for the breach of the warranty, or without bringing a cross action, he may use the breach of the warranty in reduction of the damages, in an action by the vendor for the price. There is a very learned discussion and citation of authorities under the case of Cotter v. Powell, 6 Term, 320, in Smith Leading Cases, Law Library N. S. vol. 28, on the vexed question as to the remedy on special contracs, remaining in part unperformed. To the accumulation of English cases the learned American editors of the Law Library have given also a view of the American cases on the same subject. In Ferguson v. Huston, 6 Missouri Rep. 407, it was held, after an elaborate examination of the authorities, that defect or unsoundness in a chattel sold, cannot be set up in bar of a recovery on a note given for such chattel, unless the vendee, on the discovery of such defect or unsoundness, returns or offers to return the chattel, or shows it to be valueless. In the learned opinion of the dissenting judge, it was held, that the retention of the chattel, in a case of fraud or breach of warranty, was no waiver of the purchaser's right of de

In Louisiana, the failure of consideration, either in whole or in part, in a contract of sale, has been held to be a defence as far it goes, on the principle that matters which diminish, as well as those which destroy the demand may be pleaded in defence of the suit. The discovery by the vendee, before payment of incumbrances, is also held, in Pennsylvania, to be a valid defence, in a suit for the purchase money to the amount of the incumbrance, whether there existed a general or special warranty.b The defendant may, by way of defence, show a breach of warranty as to the article sold, without either returning them, or giving notice to the vendor to take them away.c In Virginia, it was provided by statute, in 1830, that a defendant might allege by way of plea, not only fraud in the consideration or procurement of any contract, but any such failure in the consideration thereof, or any such breach of warranty of the title or soundness of personal property, as would entitle the defendant, in any form of action, to recover damages at law, or to relief in equity. The nile in Ohio is, that the fraud must go to the whole consideration, or the payment of a note cannot be avoided at law, upon

fence on these grounds by way of mitigation of damages, and to prevent circuity of action. If, however, he meant to rescind the contract for the fraud or defect, there must then have shown a return, or tender of a return of the article.

Evans v. Gray, 12 Martin's Louis. Rep. 475, 647. But in Fulton v. Griswould, 7 Martin's Louis. Rep. 223, it was held that the vendee of land could not refuse payment of the price, nor could he require surety from the vendor until suit brought to evict him. And it seems now to be seitled in South Carolina, that on a sale of land, a defect of title in the vendor is no defence at law to a suit on the note given for the consideration money, so long as the purchaser remains in possession under an equitable title. Car. ter v. Carter, 1 Bailey's Rep. 217. Bordeaux v. Cave, Ibid. 250. Westbrook v. M'Millan, Ibid. 259.

Christy v. Reynolds, and Tod v. Gallaghar, 16 Serg. f Rawle, 258. 261.

· Steigleman v. Jeffries, 1 Ibid. 477.

the ground of fraud. This is also the law in Kentucky; and a plea going only to a part of the consideration is bad.b

*There has been much discussion and diversity *475 of opinion on the subject of rescinding and of enforcing the specific performance of contracts, in the cases of partial failure of the consideration.

In one case, Lord Kenyon observed, when sitting in chancery, that the court had gone great lengths in compelling parties to go on with purchases, contrary to their original agreement and intention ; but he said, a case might be made out sufficient to put an end to the whole contract, when the seller could not make a good title to part of the subject sold. In the case of the Cambridge wharf, the seller made title to all the estate but the wharf, and that part of the land was the principal object of the buyer, in making the purchase, and the buyer who had contracted for the house and wharf, was compelled to complete the purchase without the wharf. But, as Lord Kenyon truly observed, that was a determination contrary to all justice and reason. There have been a number of hard

* Harlan v. Read, 3 Ohio R. 285.

• Delany v. Vaughan, 2 Bibb's Rep. 379. Wallace v. Barlow, Ibid. 168. The rule in South Carolina in respect to warranty of title both as to real and personal property, is thoroughly discussed and stated by Mr. Justice Earle, in Moore v. Nesbit, 3 Hill's S. C. Rep. 299. In regard to the construction of the warranty of title, there is no difference between real and personal property. Every covenant of general warranty of title is held to be a covenant of seisin, and the vendee may bring covenant on the warranty, or resist an action for the price, without actual eviction, and whether there has been a partial or a total failure of consideration. A total or a partial failure in regard to title, as well as a total or partial failure in regard to soundness, will avail a purchaser of personal property as valid defence when sued for the purchase money, to the same extent, in the same form, and upon the same principles, as the like failure would avail a purchaser of real estate. The jurisprudence of South Carolina is thus rendered free from embarrassing distinctions on this subject, by the comprehensiveness, simplicity, and certainty of the rule.

Poole v. Shergold, 1 Cox's Cas. 273.

cases in chancery, and in which performance has been enforced, though there was a material variance between the actual and supposed circumstances of the subject, and when those circumstances were wanting which were the strong inducement to the contract. These cases had gone to such extravagant lengths, that Lord Erskine declaredb he would not follow them, nor decree specific performance, when the main inducement to the purchase had failed. In many cases, however, where the title proves defective in part, or to an extent not very essential, specific performance will be decreed, with a rateable reduction of the purchase money, by way of compensation for the deficiency. The good sense and equity of the law on this subject

is, that if the defect of title, whether of lands or *476 chattels, be so great as to render the thing sold

unfit for the use intended, and not within the in

• Several cases of that kind are alluded to Lord Eldon, in 6 Ves. 678 ; and see, also, Oldfield v. Round, 5 Ibid. 508.

b Halsey v. Grant, 13 Ves. 78. Stapylton v. Scott, Ibid. 426.

• Milligan v. Cooke, 16 Ves. 1. King v. Bardeau, 6 Johns. Ch. Rep. 38. Smith v. Tolcher, 4 Russell's Rep. 305. Soule v. Heerman, 5 Miller's Louis. Rep. 358. See a statement of the difficulties on this subject by the master of the rolls, in Thomas v. Dering, 1 Keene, 729. Sales by an heir apparent, of expectancies or reversionary interests will be set aside when the consideration is inadequate, and advantage was taken of his necessities. Earl of Portmore v. Taylor, 4 Simon's Rep. 182. Gibson v. Jeyes, 6 Vesey, 266. Peacock v. Evans, 16 Vesey, 512. Gowland v. De Faria, 17 Ibid. 20. Addis v. Campbell, 4 Beavan, 401. S.P. See in Lord Alborough v. Frye, 7 Clar. f Fim. 436, the observations of Lord Cottenham, on the case of Gowland v. De Faria, relative to the value of expectancies. The sale of the expectation of an heir of an inheritance in real as well as personal estate will be supported in chancery, if made bona fide and for a valuable consideration. This was so declared by the A. V. Chancellor, in in Varick v. Edwards, 1 Hoffman's Ch. Rep. 383. 395–405, after an elaborate examination of authorities. Post, vol. iv. 261. S. P. So, the release by an heir apparent of his estate in expectancy, with the consent of the ancestor, on a valid consideration, with a covenant of warranty running with the land, is good and effectual at law. Coburn v. Hollis, 3 Metcalf's Rep. 125. In Scotland an agreement for the sale of a future or expected inheritance is lawful. Stair's Institutions, by More, vol. i. note 1. p. 63.

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