| Tex. | Dec 15, 1847
delivered the opinion of the court.
That the charge of the court embraces erroneous propositions is not, of itself, a sufficient cause for reversing a judgment, where, upon the whole, the charge given was not unfavorable to the party seeking the reversal. 4 Litt. 217; 3 J. J. Marsh. 508; id. 717; 6 Monr. 61; 21 Wend. 354" court="N.Y. Sup. Ct." date_filed="1839-07-15" href="https://app.midpage.ai/document/camden--amboy-railroad--transportation-co-v-belknap-5515330?utm_source=webapp" opinion_id="5515330">21 Wend. 354; 23-id. 79; 25 id. 417.
It may be true in the case before us, that the court erred in stating to the j ury that the defendant, under the plea of a total failure of consideration, could not have the benefit of showing a partial failure; yet if the effect produced by this part of the charge must necessarily have been removed by other portions of the charge, this error of the court can constitute-no ground for reversing the judgment.
The plea in this case was that the negro was unsound; this is alleged as the fact in which the failure of consideration consisted. It was for the jury to decide whether this defense was sustained by the evidence. So far as. the evidence conduced to prove that the negro was laboring under any disease -whatever at the time of the sale, it was that of consumption of which he died. And although the judge did charge the jury that the defendant could not avail himself of a partial failure of consideration, yet he also charged that if the negro, at the time of the sale, had the incipient stages of that disease and died of it, he was valueless; and in that case they must find for the defendant. That disease was doubtless mentioned in the charge for the reason that no other was pretended.
It is difficult to perceive how a charge more favorable to the defendant under the pleadings and evidence could have been given.
It was equivalent to saying to the jury, that if the negro-when sold had even the incipient stages of disease, there was a total failure of consideration, the defense was sustained, and" they must find for the defendant. Surely if the negro had' not even so much as the incipient stages of disease, the plea.
But the judge did not stop here. He also instructed the jury, that if they believed the negro unsound at the time of the sale and warranty, the defendant was entitled to recover the price which he had paid.
This was in effect asserting that if the negro was unsound when sold, the plaintiff not only could not recover upon the note sued on, but the defendant could even recover back in that action so much of the price of the negro as he had previously paid, and this, too, without regard to the character or extent of the unsoundness.
Hnder this charge, if the jury had believed that the unsoundness complained of really existed, they could not have found a verdict for the plaintiff. That verdict is consistent with nothing less than the belief, on their part, that the alleged unsoundness had, in fact, no existence at the time of the sale; and that the defense set up in the answer was either wholly untrue, or unsupported by the evidence.
That part of the charge complained of was little else than a mere abstract proposition, of doubtful application to the case presented in evidence; for there can scarcely be a pretense that the evidence conduced in any degree to establish a partial failure of consideration. There was either a total failure or none at all. If there was any defense which the evidence conduced to establish, it went to the whole, and not to a part of the consideration. This the presiding judge must have •felt, and hence the various forms in which he sought to impress upon the jury the proposition that if the negro was unsound at the time of the sale the plaintiff could recover nothing. Although the instruction that the defendant could not avail himself of a partial failure of consideration, under the plea of a total failure, was erroneous, Acts 1846, p. 40, yet the effect of that error was afterwards “ wiped away,” as it is expressed in a case before cited, 4 Litt. 217.
That instruction was overborne, and its effect removed by the more explicit and pertinent instructions, subsequently given, so entirely favorable to the defendant, and applied so
Upon the whole charge we are unable to perceive that the court erred to the prejudice of the defendant.
Though it was otherwise at common law, 7 Flonr. 411; 2 Kent, 473, and 2 Stark. Ev. 880, and cases cited; 10 B. and 0. 877, yet, under our remedial system, a part failure of consideration might doubtless have been pleaded as well before the act of 1846 upon that subject, p. 40, as since the passage of the statute; and where a total failure is averred to have resulted from certain facts alleged, the defendant may show the existence of those facts; and though it should appear that their consequence was not a total, but a partial failure of consideration, the defendant is entitled pro tanto to the benefit of his plea, and may avail himself of the partial failure shown. In Louisiana the failure of consideration, either in whole or in part, is held a defense as far as it goes, on the principle, says Chancellor Kent, that matters which diminish, as well those which destroy the demand, may be pleaded in defense of the suit. 2 Kent, 474; 12 M. R. 647.
Although this was denied in the present instance, we have no doubt that if the denial was not quite immaterial under the evidence, its effect was wholly removed and obliterated by the entire instructions given in the case.
We are of opinion, therefore, that the judgment be affirmed.