13 N.Y.S. 266 | New York Court of Common Pleas | 1891
Appeal from a judgment of the general term of the city court of New York, affirming a judgment in favor of defendant, entered upon the verdict of a jury, and from an order affirming an order denying a motion for a new trial. The action was brought upon an instrument in writing of which the following is a copy: “New York, September 1, 1885.
“I promise to pay to the order of L. S. Chase one hundred and eight dollars, monthly, in the following manner, to-wit, $9, 20 days after date, and $9 on the 20th day of each succeeding month for twelve months from date, for the privilege of advertising purposes of one panel, each 7x22 inches, in 15 cars of the Broadway & 7th Ave. R. R. Co. in the city of New York, for the term of one year from date. J. Senn.” '
The answer alleged the failure on the part of the plaintiff to perform the agreement of advertising, and that the defendant elected to rescind his agreement and duly notified the plaintiff thereof. The instrument sued upon is a promissory note. Chase v. Behrman, 10 Daly, 344. The defense is a failure of consideration agreed upon between the parties, and this defense is sufficiently pleaded in the answer. The suit is between the payor and payee of the note. When an action on a note is between the immediate parties to the note, the want of consideration, or the failure, or partial failure, is always open to inquiry. A total failure of consideration for which the note is given is a good defense, and stands upon the same footing as the original want of it. And a partial failure of consideration is a good defense pro tanto.
Defendant was allowed upon the trial to testify in reference to the size of the panels containing the advertisement, agreed upon between him and the