This is an action upon a check given by the defendant. On the trial of the cause the jury returned a verdict for the defendant, upon which judgment was rendered. It is claimed by the plaintiff that on the issues made by the pleadings the plaintiff is entitled to recover and that the judgment cannot be sustained. The petition is as follows:
“The plaintiff complains of the defendant and says that it is a corporation organized and existing under and by virtue of the laws of the state of Kansas, and doing business as bankers in said state; that on the 31st day of January, 1889, this defendant executed, signed, and delivered to George H. Allen a cheek on the Lincoln National Bank of Lincoln, Neb., for $163.12, payable to the said George H. Allen, or order. On the same day said check was by the said George H. Allen, for a valuable consideration, and in the due course of business, assigned to Kerndt Brothers, and was by them for a valuable consideration, and due course of business, and without notice, assigned to this plaintiff, and that afterwards the said Joseph Burns, without any right or authority so to do, stopped the payment of said check, to the damage of this plaintiff in the sum of $163.12.
“ 2. On the 4th day of February, 1889, said check was protested for non-payment, and the costs of protesting the same are $3.29.
“Wherefore plaintiff prays judgment against said defendant for the sum of $163.12 with interest from the 31st day of January, 1889, and $3.29 with interest from the 4th day of February, 1889, and costs of suit.”
To this petition the defendant filed an answer as follows:
“Wherefore the defendant prays that the plaintiff’s appeal in this case may be dismissed, and that defendant may go hence and recover his costs.”
The reply denies the new matter set forth in the answer and that there was any fraud or misrepresentation. The original check, with the indorsements thereon, was introduced in evidence and is as follows:
“24066. Lincoln, Neb., Jan. 31, 1889. No.-
“ Lincoln National Bank, 3 29
“Pay to G. H. Allen, or order, $163 12 one hundred and sixty-three dollars.---
Count $166 41
“Joseph Burns.”
It is indorsed as follows : “G. H. Allen. Kerndt Brothers. Pay to A. Yeazel, cashier, for collection account of Lanning, Antram & Co., Bird City, Kansas. C. L. An-tram, cashier. Pay C. T. Boggs, cashier, or order, for account of Exchange National Bank, Hastings, Neb. A. Yeazel, cashier.”
It will thus be seen that defendant really pleads a failure of consideration to the amount of $100, and in effect admits the remainder of the debt. Therefore, if the action was between the original parties, the plaintiff, upon the pleadings, would be entitled to recover a portion of the claim. The rule is thus stated by Daniel, 1 Neg. Inst, sec. 201: “Whenever the defendant is entitled to go into the question of consideration, he may set up the partial as well as the total want of consideration. Thus, where the drawer of a bill for £19 5s., payable to his own order, sued the acceptor, and it appeared that the bill was accepted for value as to £10 only, and as an accommodation to the plaintiff as to the residue it was held that although with respect to third persons the amount of the bill might be £19 5s., yet as between these, parties it was an accept
Reversed and remanded.