Durment v. Tuttle

50 Minn. 426 | Minn. | 1892

G-ilfillan, C. J.

It is not open to question in this state that a partial failure of consideration may be interposed as a defense, or partial defense, to a promissory note. Stevens v. Johnson, 28 Minn. 172, (9 N. W. Rep. 677;) Torinus v. Buckham, 29 Minn. 128, (12 N. W. Rep. 348.)

In this case the consideration for the note and for the cash paid on the transaction was the conveyance, or attempted conveyance, of the thirty-five acres at the price of $3,500, being at the rate of $100 per acre. As there was no evidence to the contrary, it is to be presumed that the land was of equal value per acre, so that, the title to-thirty acres failing, there was a failure of consideration on the transaction amounting to $3,000. $1,750 having been paid by defendant in cash, and a note for $1,750 given for the remainder, we do not see any reason for attempting to apportion the amount of the failure between the cash paid and the note, in an action for the recovery of the amount of'the note. The price agreed on was an entirety, and the consideration for the price was an entirety, and, it having failed to the extent of $3,000, it left recoverable of the price only $500, and that may be interposed as a total or partial defense in any action to recover the whole or any part of the price above the $500.

(Opinion published 52 N. W. Eep. 909.)

There passed, however, by the deed to defendant, not only the five acres, but, under the covenants in it, the right to resort to the covenants in the deed of Barnum, the grantor of Pierre. Those covenants were worth no more than the amount of Barnum’s liability upon them. Thejr were worth no more to Pierre, and no more to defendant ; and that is all that defendant can be charged with, for having received satisfaction of them either in property or money. If Barnum chose to give more than he need, to be released from them, that is a matter, so far as the excess is concerned, between him and defendant.

Judgment affirmed.