37 N.H. 519 | N.H. | 1859
The plaintiff having taken the note after it was dishonored, stands in the position of the original payee, and if the proposed defence would be good against him, it would be also good against the plaintiff.
The question then is, did the facts stated by the defendant, and admitted by the plaintiff' to be true, form a valid defence to a part of the note ?
It was settled in Drew v. Towle, 27 N. H. (7 Foster) 412, that a partial failure of consideration is a good defence to a promissory note, where the amount to be deducted on that account is matter to be ascertained by mere computation, bnt that it is otherwise where such amount depends upon the ascertainment of unliquidated damages.
Greenleaf states the rule thus: “If the consideration has only partially failed, and the deficiency is susceptible of definite computation, this may be shown in defence, pro tanto. But if the precise amount to be deducted is unliquidated, this cannot be shown in reduction of damages, but the defendant must resort to his cross action.” 2 Greenl. on Ev., sec. 199.
Other authorities may be cited to the same effect. Chitty on Bills 71; Story on Prom. Notes, sec. 187; Bailey on Bills 393 ; 1 Saund on Pld. and Ev. 303, 304; Ha
Pive of the articles of the machinery that went to make np the consideration of the note in suit, were sold to satisfy the attachment existing upon the machinery at the time of the sale to the defendant, and when he gave the note. To this extent the consideration of the note has failed; and had there been any specific value fixed to the articles when the defendant purchased them, the amount could now be deducted and allowed in this suit. But the value was not fixed. The whole seventeen articles were sold for $1200, and whether these five were worth five seventeenths of that sum, or one half, or one third, or what they were worth, is a matter entirely unliquidated; and, upon the authorities cited, the ruling of the court excluding the defence was correct.
The sale, by the officer, on the execution, was only evidence of the value. It settled nothing that would govern the parties to the note. Either would be permitted to show that the property was of a different value, upon a cross action in regard to it.
The motions filed by the defendant for a continuance and stay of proceedings, were matters addressed to the discretion of the court below, and having been passed upon in that court cannot be reviewed here. Wisheart, v. Legro, 33 N. H. 177; Foss v. Strafford, 25 N. H. (5 Poster) 78; Man. Company v. Wiggin, 14 N. H. 441; Jenkins v. Brown, 21 Wendell 454; Feneley v. Mahoney, 21 Pick. 212; Clapp v. Hanson, 3 Shep. 345.
Judgment on the verdict.
