19 Wash. 469 | Wash. | 1898
The opinion of the court was delivered by
The complaint sets up two causes of action. . The first upon a promissory note for the sum of $1,600,
“ Though some of the earlier cases denied the doctrine, there is now no question, in the light of recent decisions, that a partial failure of consideration is. a defense pro tanto when such failure is liquidated in amount, or can he definitely ascertained by computation.”
And the numerous authorities cited in support of the text fully sustain it. In the present case the evidence is very clear as to what the contract was, that the defendants were to receive the lease for a term of three years at a stipulated rental of $225 per month, and that the premises were worth $300 per month. It was therefore a mere matter of computation for the jury to determine to what extent the consideration had failed. It was a matter susceptible of definite ascertainment by the jury. The charge of the court was certainly as favorable as the plaintiff was entitled to. It was as follows:
“ If you find that at the time of the giving of this note that it was given as a part consideration for a bill of sale or*472 a transfer of this stock and fixtures, and that it was a part of the contract that a lease of this store was to be procured for the term of three years, at a fixed rate of $225 per month, if that lease was to be procured and signed or procured directly for the benefit of these defendants, as a part of the transaction; and if you further find that the value of that lease, in contemplation of the parties at that time, was greater than the amount of this note; then you may find for the defendant upon that cause of action. But unless you do so find, you will find for the plaintiff upon that causé of action.”
Presuming that the jury accepted and were governed by the rule of law which the court by this instruction gave them, it is clear from the verdict that they found that there was a total failure of consideration for the note, and the fact that the court erred in telling them that unless the value of the lease in contemplation of the parties was greater than the amount of the note they should find for the plaintiff could have in nowise prejudiced the plaintiff. While the argument of defendants’ counsel to the jury was somewhat objectionable, we are unable to see how it could possibly have influenced the jury, and the court having duly admonished them to disregard the irrelevant and immaterial statements of counsel, it must be presumed that they were in no manner misled by the argument. Other errors assigned are not regarded as of sufficient importance to warrant discussion. We think the cross-ap2ieal by defendants is wholly without merit, and that the court rightfully directed a verdict in plaintiff’s favor as to the second cause of action.
The judgment will be in all things affirmed.
Soptt, C. J., and Dunbar and Beavis, JJ., concur.
Anders, J., not sitting.