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give in evidence many matters in discharge of his liability to the plaintiff, such as, bankruptcy of the plaintiff, where this would defeat the action; coverture of the plaintiff, where she sues alone, and has no interest in the contract; payment; accord and satisfaction; former recovery ; higher security given; discharge by a new contract; release; and the like. So, in assumpsit for use and occupation, the defendant under this issue may show that he has been evicted by one who had recovered judgment against his lessor, by virtue of a paramount title, to whom he has attorned and paid the rent subsequently accruing.(a) Yet there are some matters in discharge, which admit the debt, but go in denial of the remedy only, that must be pleaded ; namely, bankruptcy or insolvency of the defendant; tender; set-off; and the statute of limitations. It is only where the special plea amounts to the general issue, that is, where it alleges matter which is in effect a denial of the truth of the declaration, that such plea is improper and inadmissible. These defences, being for the most part applicable to other actions on contracts, will be treated under their appropriate titles.

$ 136. Want of consideration. In regard to the admissibility of evidence of failure, or want of consideration, as a defence to an

plaintiff sues upon a quantum meruit, and the defendant has lost the opportunity of making a set-off, by not complying with the rule requiring him to file a bill of particulars, he may still show that the plaintiff's demand was compensated at the time, by services rendered, and that therefore no liability of the defendant ever arose. Green 4. Brown, 3 Barb. S. C. 119.

11 Chitty on Plead. 417–420; Gould on Plead. c. 6, S$ 46–50; Edson v. Weston, 7 ('ow. 278; Drake v. Drake, 11 Johns. 531; Dawson v. Tibbs, 4 Yeates, 349; Young v. Black, 7 Cranch, 565; Offut v. Offut, 2 H. & G. 178; Wright v. Butler, 6 Wend. 284.

? Newport v. Hardy, 10 Jur. 333.
3 i Chitty on Plead. 420; Gould on Plead. c. 6, § 51.
* Gould on Plead. c. 6, § 78; Steph. on Plead. 412.

a debt due him from the plaintiff is admis- Hough v. Birge, 11 Vt. 190. But where sible under this answer.

the holding possession of the premises is So the defendant may prove that the by permission of the owner, an underamount claimed by the plaintiff was, by taking on the part of the tenant to pay agreement of the parties, received and ap- rent may be implied from slight circumplied by the defendant to the advances stances. Watson v. Brainard, 33 Vt. 88. male by him to plaintiff, and interest. And the plaintiff being the owner of the Marvin v. Mandell, 125 Mass. 562. premises, the mere fact of occupancy by

(a) To sustain assumpsit for use and the defendant would be, prima facic, sufoccupation, the relation of landlord and ficient to create a presumption of such tenant must have existed between the relation. Keyes v. Hill, 30 Vt. 759. If parties, evidenced either by an express or the tenant has been evicted of part of the implied contract. Where one enters upon premises and retains the rest, he is liable the land of another under an agreement of for a proportion of the rent. He should purchase which he subsequently fails to set up this by a special plea. Seabrook v. carry out, the relation is not sustained. Moyer, 88 Pa. St. 417. Stacy v. Vt. Cen. R. R., 32 Vt. 551;

action of assumpsit, there is an embarrassing conflict in the decisions. A distinction, however, has been taken between those cases where the consideration was the conveyance of real property, and those where it was wholly of a personal nature, such as goods or services; and also between a total and a partial failure of the consideration. Where the consideration is personal in its nature, and the failure is total, or the defendant has derived no benefit at all from the services performed, or none beyond the amount of money which he has already advanced, it seems agreed, that this may be shown in bar of the action. If, in an express contract for a stipulated price, the failure of a similar consideration is partial only, the defendant having derived some benefit from the consideration, whether goods or services, and the count is special, upon the express contract, the English rule seems to be, not to admit it to be shown in bar pro tanto, but to leave the defendant to his remedy by action ;2 unless the quantum to be deducted is matter susceptible of definite computation. But where the plaintiff proceeds upon general counts, the value of the goods or services may be appreciated by evidence for the defendant. The

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1 Jackson v. Warwick, 7 T. R. 121; Templer v. McLachlan, 2 N. R. 136, 139; Farnsworth v. Garrard, 1 Campb. 38; Dax v. Ward, 1 Stark. 409; Morgan v. Richardson, 1 Campb. 40, n.; 9 Moore, 159; Tye v. Gwinne, 2 Campb. 346.

2 Templer v. MeLachlan, 2 N. R. 136 ; Franklin v. Miller, 4 Ad. & El. 599 ; Grimaldi v. White, 4 Esp. 95; Denew v. Daverell, 3 Campb. 451 ; Basten v. Butter, 7 East, 483, per Lord Ellenborough ; Sheels v. Davies, 4 Campb. 119; Crowninshield 0. Robinson, i Mason, 93, acc. But see contra, Okell v. Smith, 1 Stark. 107; Chapel v. Hicks, 2 Cr. & M. 214 ; 4 Tyrwh. 43 ; Cutler v. Close, 5 C. & P. 337.

8 Day v. Nix, 9 Moore, 159. See also Parish v. Stone, 14 Pick. 198, 210.

4 Denew v. Daverell, 3 Campb. 451 ; Basten v. Butter, 7 East, 479; Farnsworth v. Garrard, 1 Campb. 38; Fisher v. Samuda, Id. 190 ; Kist v. Atkinson, 2 Campb. 63; Bilbie v. Lumley, 2 East, 469 ; 1 Mason, 95, per Story, J., acc. ; Miller v. Smith, Id. 437 ; 2 Smith's Leading Cases, pp. 14, 15. In the second American edition of the last-cited work, the doctrine recognized in this country, which seems to accord in its main principles with that of Wesminster Hall, is well stated in the notes of Mr. Wallace, as follows : “Where there has been a special contract, and the plaintiff's duty has been executed and closed, he may either declare specially on the contract, or maintain general assumpsit. It is important to observe the different ground on which these two actions rest, and the difference in the proceedings to which they give rise. The special assumpsit is brought upon the express contract. Unless the plaintiff can show that he has fulfilled with legal exactness all the terms of the contract, he can recover nothing. See Morford v. Mastin & Ambrose, 6 Monroe, 609; and compare with it s. c. in 3 J. J. Marsh. 89; Taft v. Inhabitants of Montague, 14 Mass. 282; Gregory v. Mack, 3 Hill (N. Y.), 380. But if his performance has been according to the terms of the contract, and has resulted in an available and practical work of the kind required, so that the plaintiff is capable of maintaining his special action at all, he is entitled at common law to recover the whole compensation fixed by the contract, and the defendant must resort to a cross-action, to recover damages for faults in the manner of performance, or for breaches of a warranty. See Everett v. Gray et al., 1 Mass. 101, where there was a special count. It is true that, in such case, a recovery may be defeated by proof of fraud, for fraud vitiates every sale ; but upon a contract of sale, where performance has been accepted, the defendant cannot set up this defence,

American courts, to avoid circuity of action, have of late permitted a partial failure of consideration to be shown in defence pro tanto in all suits on contracts respecting personal property or

unless he has returned the article or given notice as soon as the variance is discovered, for thereby he rescinds his acceptance of the performance ; if he does not, he cannot set up this defence, for the plaintiff should have been allowed an opportunity to make other use of the article, and the defendant's delay and silence would be a counter fraud in him ; unless he can show that the plaintiff could not possibly have been injured by the non-return, which is only where the article is wholly useless ; therefore, on a sale, a special count can only be defeated for fraud, where the article has been returned, or is proved to be wholly worthless. Burton v. Stewart, 3 Wend. 236 ; Van Epps v. Harrison, 5 Hill, 64. See Thornton v. Wynn, 12 Wheat. 183 ; Case v. John, 10 Watts. 107.

“But if the plaintiff, having executed his part of the contract, brings general assumpsit, the ground of his recovery is not the defendant's special contract or promise, but he rests wholly on the implied legal liability of the defendant to recompense him for a service which has been done at the defendant's request ; the defendant not being allowed to defeat the plaintiff by setting up a special contract which he himself has broken, by not paying at the appointed time. The nature of the action, and the legal ground of the recovery, therefore, are precisely the same as they are where there has been in fact no special contract at all ; the rule that the plaintiff cannot recover beyond the rates of recompense fixed by the contract being merely a rule of evidence, founded not only upon those rates being necessarily the most reasonable measure of values in the particular case, but upon the consideration that the defendant's previous request, or subsequent acceptance, which is relied upon, was conditioned upon the charges being at those specified rates. Accordingly it results necessari from the ground and nature of the action, that, when the plaintiff declares generally, the defendant may show, in reduction of damages, everything that goes directly to the consideration, and immedi. ately affects the value of the work ; for the assumpsit which the law implies, whether in quantum meruit, or indebitatus, is always commensurate with the actual final value of the article or work. This principle, in respect to indebitatus assumpsit, is decided in Heck v. Shener, 4 Serg. & Rawle, 249, the distinction being between those torts or breaches of contract which go entirely to the consideration, and those which are dehors, and collateral to it; the latter not being admissible. Gogel v. Jacoby, 5 S. & R. 117. The defendant, therefore, may show defects in the work or service, and if the plaintiff refers to the contract as evidence of the fair price of the work or article, the defendant may show that this price was predicted upon a warranty of quality which has proved false ; in short, from the very nature of the claim which the plaintiff has chosen to make, the defendant may prevent his recovering more than the real, inherent value of the consideration. This is not an anomaly or innovation of the law; at least, the law has necessarily been thus ever since it has been settled that general assumpsit is maintainable after the performance of a special contract; it is evident from the cases cited in Basten v. Butter, 7 East, 479, and notes, that Lord Kenyon had previously more than once ruled the point differently from Buller, even if Broom v. Davis, ruled by the latter, was not, what it probably was, a special count; and Lord Kenyon was not very greatly given to innovation. The cases of Mills and others v. Bainbridge, and Templer v. McLachlan, in 2 New Reports, 136, 137, accord entirely with the distinction above noted. [But Templer v. McLachlan is not now regarded as law. See note to the case in Day's edition.) The neglects there complained of did not go to the consideration of the assumpsits there declared upon, the service for which the assumpsit was brought having been, in both cases, completely performed ; but were collateral torts. In this country it may be considered as perfectly settled, that when the plaintiff brings general assumpsit, when there has been a special contract, the defendant may give in evidence, in reduction of damages, a breach of warranty, or a fraudulent misrepresentation, without a return of the article. McAllister v. Reab, 4 Wend. 483, affirmed on error, in 8 Wend. 109 ; Still v. Hall, 20 Wend. 51 ; Batterman v. Pierce, 3 Hill (N. Y.), 172 ; Steigleman v. Jeffries, 1 Serg. & Rawle, 477, &c. In like manner, defects in the work or article must be given in evidence if this form of action be brought. Grant v. Button, 14 Johns. 377 ; King & Mead v. Paddock, 18 Johns. 141.” See 2 Smith's Leading Cases, pp. 27, 28 (2d Am. ed.).

services; only taking care that the defence shall not take the plaintiff by surprise. But where the consideration consists of

1 22 Am. Jur. 26 ; 2 Kent, Comm. 473, 474 ; Barker v. Prentiss, 6 Mass. 430 ; Parish v. Stone, 14 Pick. 198 ; Folsom v. Mussey, 8 Greenl. 400 ; Reed v. Prentiss, 1 N. H. 174 ; Shepherd v. Temple, 3 N. H. 455 ; Hills v. Banister, 8 Cowen, 31; McAllister v. Reab, 4 Wend. 483 ; Reab v. McAllister, 8 Wend. 109 ; Todd v. Gallagler, 16 S. & R. 261 ; Christy v. Reynolds, Id. 258 ; Evans v. Gray, 12 Martin, 475, 647 ; Spalding v. Vandercook, 2 Wend. 431 ; Hayward v. Leonard, 7 Piek. 181; Cone v. Baldwin, 12 Pick. 545 ; Pegg v. Stead, 9 C. & P. 636. In the case of Parish v. Stone, above cited, the jury found that a part of the consideration of the note declared upon was for services rendered by the plaintiff to the defendant's testator, and that the residue was intended as a mortuary gift, and the question was, whether the plaintiff was entitled to recover for that part only which was good and valid in law. In delivering the judgment of the court upon this question, the law was thus stated by Shaw, c. J. : “ Had the note been taken for two distinct liquidated sums, consolidated, and the consideration had hen wholly wanting, or wholly failed as to one, it seems quite clear, that, according to well-established principles, supported by authorities, the note, as between the original parties, and all those who stand in such relation as to allow the defence of want of consideration, it would be competent to the court to apportion and consider it good in part, and void in part, and to permit the holder to recover accordingly.

" In Bayley on Bills (Phillips and Sewall's ed.), 340, and in most other text-books, it is laid down, that want or failure of consideration is a good defence as between immediate parties, or holders without value, either total or pro tanto, as the failure goes to the whole or part of the consideration. Barber v. Backhouse, Peake, 61. Where there was originally no consideration, for part of the sum expressed in the bill, the jury may apportion the damages. Per Lord Kenyon, Darnell v. Williams, 2 Stark. 166.

“That the holder in such case recovers on the note, and not on the original consideration, is rendered manifest by another series of decisions, thereby showing that the note is good pro tanto, as a negotiable instrument, upon which a holder by indorsement may sue and recover; whereas the right to recover upon the original consideration would not be negotiable, and would not vest in the holder of the note by indorsement.

“It being held that when a bill or note is made without value, or as an accommodation note, this may be shown as a good defence against the payee; it is also held as a principle absolutely essential to the currency of bills and notes, that where an indorsee takes a bill for valuable consideration, or derives title through any one who has paid value for it, he shall recover to the amount, notwithstanding it was originally made without value, and as an accommodation bill. It follows, as a necessary consequence, from these two principles, that where an indorsee of an accommodation bill has taken it for value, but for less than the amount expressed by the bill, there the holder shall recover only to the amount for which he has given value. Jones v. Hibbert, 2 Stark. 304. In that case the defendant accepted a bill for £415, to accommodate Phillips & Co., who indorsed it to their bankers for value, and became bankrupt; the bankers knew it to be an accommodation acceptance, and their demand against Phillips & Co. was £265 only ; it was held that they could only recover the £265, and they had a verdict accordingly.

“So where a bill accepted as a gift to the payee is indorsed for a small consideration, the indorser can recover only to that extent. Nash v. Brown, Chitty on Bills (5th ed.), 93.

“From these cases it is manifest, that the plaintiff recovers on the bill, and not on the original consideration; otherwise the right to sue and recover pro tanto would not pass to the indorsee by the negotiation of the bill. They therefore establish the proposition, that where the parts of a bill are divisible, making an aggregate sum, and as to one liquidated and definite part there was a valuable consideration, and as to the other part there was no consideration; the bill, as such, may be apportioned, and a holder may recover for such part as was founded on a good consideration.

2 Runyan v. Nichols, 11 Johns. 547; People v. Niagara C. P., 12 Wend. 246; Reed v. Prentiss, 1 N. H. 174, 176.

real estate, conveyed by deed, with covenants of title, promissory notes being given for the purchase-money, the better opinion

"But it is contended that where the parts of the bill are not liquidated, and distinguishable by computation, a different rule prevails, and several English cases are relied on to show, that, though the consideration fails in part, the whole bill is recoverable. Moggridge v. Jones, 14 East, 486 ; Morgan v. Richardson, 1 Campb. 40, n.; Tye v. Gwynne, 2 Campb. 346; Grant v. Welchman, 16 East, 206. In these cases it was held, that where the note was given for an entire thing, and the consideration afterwards failed in part, the whole bill was recoverable, and the defendant was left to his cross-action. As where the note was given for a lease, and the lease was not completed according to contract; or for a parcel of hams, and they proved bad and unmarketable; or for goods, and they were of a bad quality and improperly packed; or for an apprentice-fee, and the apprentice was not kept by his master.

“In this respect, there seems to be some distinction between the English decisions and those of New York. In the latter it was held, that upon a suit between original parties, upon a note given upon a contract to manufacture casks, the defendant might go into evidence to show that the casks were unskilfully manufactured, to reduce the amount of damages.

“But without relying upou this difference, we think the English decisions may be well reconciled, by a reference to the known distinction between failure of consideration and want of consideration.

"All the cases put are those of failure of consideration, where the consideration was single and entire, and went to the whole note, and was good and sufficient at the time the note was given, but by some breach of contract, mistake, or accident, had afterwards failed. There the rule is, if the consideration has wholly failed, or the contract been wholly rescinded, it shall be a good defence to the note. But if it have partially failed only, it would tend to an inconvenient mode of trial and to a confusion of rights, to try such question in a suit on the note, as a partial defence, and therefore the party complaining shall be left to his cross-action. This distinction, and the consequence to be drawn from it, is alluded to by Lord Ellenborough in Tye v. Gwynne, 2 Campb. 346. He says, “There is a difference between want of consideration and failure of consideration. The former may be given in evidence to reduce the damages ; the latter cannot, but furnishes a distinct and independent cause of action.' It seenis, therefore, very clear, that want of consideration, either total or partial, inay always be shown by way of defence; and that it will bar the action, or reduce the damages, from the amount expressed in the bill, as it is found to be total or partial respectively. It cannot, therefore, in such case, depend upon the state of the evidence, whether the different parts of the bill were settled and liquidated by the parties or not. Where the note is intended to be in a great degree gratuitous, the parties would not be likely to enter into very particular stipulations as to what should be deemed payment of a debt, and what a gratuity. The rule to be deduced from the cases seems to be this, that where the note is not given upon any one consideration, which, whether good or not, whether it fail or not, goes to the whole note at the time it is made, but for two distinct and independent considerations, each going to a distinct portion of the note, and one is a consideration which the law deems valid and sufficient to support a contract, and the other not, there the contract shall be apportioned, and the holder shall recover to the extent of the valid consideration, and no further. In the application of this principle, there seems to be no reason why it shall depend upon the state of the evi. denre, showing that these different parts can be ascertained by computation; in other words, whether the evidence shows them to be respectively liquidated or otherwise. If not, it would seem that the fact, what amount was upon one consideration, and what upon the other, like every other questionable fact, should be settled by a jury upon the evidence. This can never operate hardly upon the holder of the note, as the presumption of law is in his favor, as to the whole note; and the burden is upon the de. fendant to show, to what extent the note is without consideration." See 14 Pick. 208–211.

In New York the right of recoupment of damages is allowed, though the damages result from a mere breach of contract, and are unliquidated; and though the action be upon a specialty; under the provision of Rev. Stat. vol. ii. p. 504, § 96 (77). See Van Epps v. Harrison, 5 Hill, 63; Batterman v. Pierce, 3 Hill, 171; Ives v. Van Epps, 22 Wend. 155.

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