31 N.J.L. 335 | N.J. | 1865
The opinion of the court was delivered by
This is a motion for a new trial. The suit originated in the attachment of a boat, the property of the defendants, by force of the statute of this state, facilitating the collection of demands against ships and other vessels. Nix. Dig. 529.
At the trial the defendants offered to verify the statements in this notice, and to show the defects of the engine and its want of correspondence with the written agreement. This offer being overruled by the court, the plaintiffs recovered the full amount of the price of the engine, as stipulated in the written contract. The action of the court in rejecting this defence is the principal ground for the present motion.
The problem for solution is, whether, in a suit founded on a special agreement for the stipulated price of an article which has been made and delivered, the vendee can show as a defence, pro tardo, that the consideration has partially failed, such failure of consideration being indefinite in amount.
In England at the present day, the defence offered and thrown out on the trial of this ease, would be admitted. The old rule was the exact opposite to that which now prevails in the courts of that country. Originally, it was held that whenever work was performed under a special contract and such work was accepted, the stipuhited price of the work must be paid, and the party paying such price must resort to a cross action for indemnification. The early cases were Browne v. Davis, cited in note in 7 East 479; Temple v. McLachlan, 2 N. R. 136; and in these it was held, with great directness, that unless the defendant could show that he had derived no benefit whatever from the work done by contract, he could not set up the mere deficiency in the consideration. This doctrine was soon changed, and in the year 1806 the modern English rule was established by the decision of the King’s Bench in Basten v. Butter, 7 East 479. The action for assumpsit for work, labor and materials, brought by a carpenter who had been employed by the defendant to roof a building. At Nisi Prius the defence was, that the work had been done in a grossly improper manner. This defence was .rejected on the authority of the previous cases, but the court in bank set aside the verdict, which was for the plaintiff, on the ground that this evidence should have been admitted. This decision has always been regarded as the leading one on this subject, and has been followed by a long line of cases extending down almost to the present time. It is not necessary that I should burthen this page with reference to these precedents, as they will be found collected in an elaborate review of the whole subject, in a note appended to Cutter v. Powell, 2 Smith’s Lead. Cases 16.
The English rule thus established has, to a certain extent, been heretofore adopted by this court. The case to which allusion is made is that of Marshall v. Hann, 2 Harr. 425.
I am aware that this distinction has been made, but I confess there seems to me little in correct theory, which will give it solid support. It is, perhaps, most ingeniously stated, by Mr. Wallace, in the American note to the case of Cutter v-Powell, already referred to. He thus defines the position r “ But if the performance has been according to the terms of the contract, and has resulted in an available and practicable work of the kind required, so that the plaintiff is capable of maintaining his special action at all, he is entitled at common* law to recover the whole consideration fixed by the contract, and the defendant must resort to his cross action to recover-damages for faults in the manner of performance or for breaches of warranty.” The only authority referred to in support of this hypothesis is that of Everett v. Gray et al., 1 Mass. 102, but the decision in that case appears to have been little considered at the time it was made and has since been repeatedly overruled by the learned court in which it was rendered. Dodge v. Tileston, 12 Pick. 333. Mr. Wallace seems to be also of the opinion that the distinction for which*
Neither do I think that the doctrine under discussion can be supported upon general reasoning. The theory upon which it must rest is founded in a fallacy — -for it goes upon •the idea that the plaintiff' can recover on his special agreement when he cannot show complete performance. But the rule of law is directly the converse. It is the settled doctrine, that where the action is special assumpsit on the express contract there can be no recovery, unless exact performance by the party setting up such contract, of all his substantial stipulations can be shown. The burthen is on the plaintiff to establish a complete performance of the agreement ou his part, so far as the same is involved in the controversy, and in this form of the pleadings, it is not enough that it appears that he has done some valuable service for the defendant. And if the plaintiff fail in the proof of his perfect compliance with the contract, he cannot sustain himself on the special count, but must resort to the promise implied by the law, in case the defendant has accepted the work which has been done, though not in accordance with the mode agreed upon.
The following cases will be found, on examination, to be authorities directly in point in favor of the same general rule. Gregory v. Mack, 3 Hill 380; Taft v. The Inhabitants of Montague, 14 Mass. 282; Allen and another v. Cameron, 1 Cromp. & Mee. 832; Poulton v. Lattimore, 9 B. & C. 259 ; Okell v. Smith, 1 Stark. R. 107; Mondel v. Steel, 8 M. & W. 858; Newton v. Forster, 12 M. & W. 772.
Nor, practically considered, has the distinction above discussed anything to recommend it. If it be true that a partial failure of consideration is admissible when the general counts are alone pleaded, but that it will be excluded in case of a special count, the consequence is that the whole affair is put in the hands of the party suing; he can so frame his ac
My conclusion is, that either in general or special assumpsit a partial failure of consideration, though indefinite in amount, is, as far as it goes, a legal defence to such action. In my opinion, therefore, the defence which was offered in this case and overruled, ought to have been admitted.
Whether such a line of defence is available when a note, which has been given for the work done or materials furnished, forms the basis of the suit, it is not necessary now to determine. Under such circumstances, in England, the defence is not admitted, and such heretofore has been the practice in this state. Allen v. Bank of U. S., Spencer 624; Starr v. Torry, 2 Zab. 190; Bennington v. Corwin, 4 Zab. 257. When the suit is between the original parties to the note, or is brought by an endorsee with notice, there appears to be no substantial reason why the failure of consideration should not be permitted to be shown ; and such is the practice which prevails in most of the American courts. Spalding v. Vandercook, 2 Wend. 431; Harrington v. Stratton, 22 Pick. 510; Peden v. Moore, 1 Stew. & Port. 71; Wadsworth v. Smith, 23 Maine 562; Hills v. Bannister, 8 Cow. 31; Wade v. Scott, 7 Mis. 509 ; Barr v. Baker, 9 Mo. 84). But this point is not now before this court.
On the ground above specified, a now trial should be granted.
Ordered accordingly.
Cited in Wychoff v. Runyon, 4 Vroom 109 ; Newman v. Fowler, 8 Vroom 91; Wakeman v. Illingsworth, 11 Vroom 433.
Rev., p. 586.