80 Iowa 451 | Iowa | 1890
— In a law action a demurrer should distinctly state the objection to the pleading, or it will be disregarded ; and objections not stated will not be considered. These rules are familiar. The plea in the answer is a total failure of consideration for the note sued on.
I. The first ground of the demurrer is that the answer fails to allege that the note was obtained by fraud, misrepresentation or deception. A failure of consideration is not necessarily dependent on either of such facts. A failure of consideration may be consistent with an honest purpose by both parties. To illustrate: A. sells to B. his horse, taking B.’s note. B. loses the horse because of the failure of A.’s title. There is a failure of consideration, for the note, although both acted in good faith. The answer is not defective merely for a failure to state one of such facts.
II. The second ground of the demurrer requires that we should determine if; to sustain his plea of failure of consideration, the defendant must seek to recover damages for, or base his defense on, a breach of warranty connected with the sale of the property. We are not, under the statements of the demurrer, to inquire as to whether a failure of consideration involves a warranty or a breach thereof, but only if the party pleading a failure of consideration must seek damages for a breach of warranty, or aver a breach of warranty as a basis for his defense. We need only say that we are cited to no authority supporting such a view, and we know of none. A difficulty appellee has to contend with is that the language of the demurrer does not bring it within the rule of the cases cited.
It is also said in the second ground of the demurrer that the answer fails to show an offer to return the property to the plaintiff. That objection is not supported by the facts. The answer states that defendant notified the agents of plaintiff of the facts, and gave them an opportunity to repair the separator or take it
