58 N.H. 50 | N.H. | 1876
We understand that the land purchased, but not conveyed to the extent of its value, increased the sum for which the note was given, and that there was a want of consideration for the note, to the extent of the value of the land not conveyed.
It is claimed that the contract was entire, and that it has never been rescinded — Way v. Cutting,
At common law, we think that the plaintiff's view is correct. But under the statute of 1861 (Gen. St., c. 201, s. 11) it is provided, that when, in an action upon a promissory note, a total want or failure of consideration would be a defence, a partial want or failure of consideration may be proved in reduction of damages, under a brief statement. Nichols v. Hunton,
This proceeding is to enforce the collection of the note secured by the mortgage. If there is nothing due upon the note, the mortgage is discharged. Bowman v. Manter,
Exceptions sustained, and judgment reversed.