5 Blackf. 349 | Ind. | 1840
Debt on a- promissory note. The defendant pleaded, 1. That 59 dollars, part of the consideration of said note, had failed in this, to wit, that said note was given for and in consideration of the hire of a stallion for the season; that during the time for which he was hired, the stallion became sick, &c., and for one month of said time was wholly unable to perform the service for which he was let, and was of no use whatever, although the hirer took all reasonable care, &c.; 2. Nil debet; 3. Failure of consideration in general terms, without showing how the consideration had failed; 4. The same substantially as the first plea, except that it applies to the whole consideration of the note. The plaintiff. demurred to the first, third, and fourth pleas, and the Court sustained the demurrers. The defendant then with
The third plea is clearly defective in not setting out the consideration for which the note wás given, and showing how the consideration had failed. There can be no doubt, but that the demurrer to that plea was correctly sustained. With regard to the first and fourth, there may be some doubt. The pleas contain no averment of fraud on the part of the letter, nor is there any averment that he warranted the horse to be sound at the time of the bailment, nor that he should continue sound and fit for the use for which he was let during the season. It is contended, however, that the law implies a warranty not only against defects which existed at the time of the bailment, but against those that might after-wards supervene. This is the civil law., but we are not aware that the principle has been introduced into the common law. There are certainly some decisions which favour a different conclusion. Without especial reference, however, to the cases that have come under our notice, we think that in this case, the pleas referred to were correctly held to be insufficient, because they do not aver a notice to the letter of the insufficiency of the horse, and an offer to return him within a reasonable time after the defect was discovered. The horse may have been incompetent, during a part of the season, to perform the service for which he was let, but if he had been returned, he might have been useful to the owner in other respects. The defendant having retained possession of the horse, and there being no imputation of fraud against the plaintiff, we think the defence was not sufficient. Story on Bailm. 255, 262.
The judgment is affirmed,,with 1 per cent. damages and costs.
