that the contract on which the note was given has been rescinded; (m) or that the property in the thing sold did not

dence that the goods were of a bad quality, and improperly packed; but was driven to his cross action. Lord Ellenborough said: "Sitting here, I shall certainly adhere to the judgment of the court in Morgan v. Richardson. Although money was there paid into court, that circumstance formed no ingredient in the opinion I then expressed. A bill of exchange cannot be accepted on a quantum meruit. 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." In Obbard v. Betham, Moody & M. 483, in an action by the drawer against the acceptor of bills of exchange given for goods supplied, which were to be "of good quality and moderate price," and were estimated at about £400, and the bills given for that amount; it was held to be no defence that the goods turned out to be worth much less than the estimated price, and that the acceptor had paid more than the real value of the goods on the bills. Lord Tenterden said: "The cases cited for the plaintiffs have completely established the distinction between an action for the price of the goods, and an action on the security given for them. In the former, the value only can be recovered; in the latter, I take it to have been settled by those cases, and acted upon ever since as law, that the party holding bills given for the price of goods supplied can recover upon them, unless there has been a total failure of consideration. If the consideration fails partially, as by the inferiority of the article furnished to that ordered, the buyer must seek his remedy by a cross action. The warranty relied on in this case makes no difference. In Morgan v. Richardson, the hams bought turned out unmarketable. That was just as much a breach of warranty as there is in the present case; for every man selling a commodity warrants it to be of merchantable quality; no purchaser buys except upon that understanding." In Day v. Nix, 9 J. B. Moore, 159, it was held, that a partial failure of consideration for a promissory note constitutes no ground of defence, if the quantum to be deducted on that account is matter not of definite computation, but of unliquidated damages; as, where a note was given for the plaintiff's disclosing to the defendant an improvement in certain machinery, which turned out to be less beneficial than was anticipated by the parties In Trickey v. Larne, 6 M. & W. 278, to an action by drawer against acceptor of a bill of exchange for £ 20 88. 6d, the defendant pleaded that, before the drawing and acceptance of the bill, it was agreed between the plaintiff and defendant that the plaintiff should do certain carpenter's work for the defendant for £ 63; that the defendant paid the plaintiff £43 in part payment of the £63, and afterwards accepted the bill of exchange, on account of the residue of the £63; that the plaintiff did not perform his agreement, but neglected to perform some work, and performed in an unworkmanlike manner other work, necessary to be done under the agreement; and that the £43 was more than the whole work done was worth. Held had, on motion for judgment non obstante veredicto, as disclosing, not a total failure of consideration for the bill, but only a partial failure of the consideration, to which the money payment and the bill were alike applicable. See also, Gascoyne v. Smith, M'Cl. & Y. 338. In Warwick v. Nairn, 10 Exch. 762, to an action by the drawer against the acceptor of a bill of exchange for £ 313 12s. 9d. the defendant pleaded, except as to £ 108 15s. 3d. parcel, that the bill was drawn and accepted in respect of the price of certain goods sold by the plaintiffs to the defendant, and for no other debt; that, at the time of sale, the plaintiff's promised the defendant that the goods should be of a certain quality; that he bought the goods and accepted

(m) Benson v. Smith, 2 La. 102.

And we should

pass; (n) or that it is wholly without value. infer from what seems to be the weight of authority, that it is a sufficient defence, that the title of the vendor has wholly failed,

the bill on the faith of the plaintiffs' promise; that the goods delivered were not of the quality specified, but of inferior quality, and that they were of the value of £108 15s. 3d and no more; and that, save as aforesaid, there never was any value or consideration for the making or accepting the said bill of exchange. Held, on demurrer, that the plea was bad. Per curiam: "The plaintiffs are entitled to judgment. The authorities are decisive that this plea is bad. If the defendant seeks to have them overruled, he must take the case to the Court of Error." Sully v. Frean, 10 Exch. 535, is to the same effect. In Drew v. Towle, 7 Fost. 412, it was held, 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; but it is otherwise where such amount depends upon the ascertainment of unliquidated damages. In Elminger v. Drew, 4 McLean, 388, where the consideration of the note was a quantity of fish sold by the payee to the maker, and warranted to be "well cured, good, sound, and wholesome;" it was held, that a breach of this warranty was no defence to an action on the note. And see, to the same effect, Washburn v. Picot, 3 Dev. 390. So in Pulsifer v. Hotchkiss, 12 Conn. 234, it was held, that, in an action on a bill or note, the defendant cannot show a partial failure of consideration to reduce the damages, if the quantum to be deducted, on account of such partial failure, is not of definite computation, but of unliquidated damages, and there has been no attempt to repudiate the contract or restore the consideration. Therefore, where A had sold an interest in a patent right to B, accompanied with a false representation; and the interest thus sold was of some value, but of less than it would have been if the representation had been true, but the difference was of an uncertain and unliquidated amount, and B did not repudiate the contract, nor offer to restore the interest sold; in an action on a promissory note given by B to A for such interest, it was held, that B could not avail himself of such partial failure of consideration to reduce the damages below the sum expressed in the note. But see Andrews v. Wheaton, 23 Conn. 112. In Spalding ». Vandercook, 2 Wend. 431, where the consideration of the note declared on was the making of a quantity of provision barrels by the plaintiff for the defendant, under an agreement to manufacture the same so that they would pass inspection under the law regulating the inspection of beef and pork; it was held, that the defendant might show, in order to reduce the amount of the plaintiff's recovery, that a portion of the barrels were manufactured in an unskilful manner, and not in compliance with the terms of the contract, whereby the defendant lost the sale of the same. So in Harrington v. Stratton, 22 Pick. 510, in an action by the payee against the maker of a promissory note given for the price of a chattel, it was held competent for the maker to prove, in reduction of damages, that the sale was effected by means of false representations of the value of the chattel, on the part of the payee, although the chattel had not been returned or tendered to him. In Peden v. Moore, 1 Stew. & P. 71, it was held, that whenever a defendant can maintain a cross action for damages, on account of a defect in personal property purchased by him, or for a non-compliance by the plaintiff with his part of the contract, the former may, in defence to an action upon his note, made in consequence of such purchase or contract, claim reduction corresponding with the injury he has susrained. And see Wadsworth v. Smith, 23 Maine, 562; Hills v. Bannister, 8 Cowen, 31; Wade v. Scott, 7 Misso. 509; Barr v. Baker, 9 Misso. 840.

(n) Reed v. Prentiss, 1 N. H. 174.

VOL. I.-0

even if he is liable on covenants in his deed; but the cases cited in our note will show that this is not certain.(o) But a failure of title to a part of the land, or incumbrance upon it,(p) or the exorbitant price of the goods, or that they were damaged, although supposed to be sound, would not be a defence. Nor will

(0) The first case on this point was Frisbee v. Hoffnagle, 11 Johns. 50. H. gave a promissory note to F. for the purchase-money of a certain piece of land, conveyed by F. to H. by deed, with warranty; and at the time of the conveyance there was a judgment against F., under which the land was afterwards sold and conveyed. In an action brought by F. against H. on the note, it was held, that the suit could not be maintained, as the consideration of the note had wholly failed, the title of H. being extinguished by the sale under the judgment, though he had not yet been evicted by the purchaser, for he was liable to be evicted, and was responsible to him for the mesne profits. The doctrine of this case has generally been followed substantially. In Rice v. Goddard, 14 Pick. 293, the court said: "The note was given in consideration of the conveyance of land by deed with the usual covenants of seisin and warranty. The title to the land failed entirely; and the question is, whether that want of title is an entire want of cousideration for the note, so as to render it nudum pactum, or whether the covenants were of themselves a sufficient consideration to support the promise. It was decided by the court in Maine, in Lloyd v. Jewell, 1 Greenl. 360, that the covenants were a sufficient consideration. The decisions of that court are entitled to great respect; the opinion, however, in the case cited, was grounded on what was considered to be the settled law of Massachusetts; but though there have been dicta, (Fowler v. Shearer, 7 Mass. 19; Phelps v. Decker, 10 Mass. 279,) there has been no decision in this State to that effect, and so the foundation of the opinion fails. The same subject has been before the courts of other States, and the decisions have uniformly been, that a total failure of title is a total failure of the consideration. Frisbee v. Hoffnagle, 11 Johns. 50; M'Allister v. Reab, 4 Wend. 483; Steinhauer v. Witman, 1 S. & R. 447 ; Gray v. Handkinson, 1 Bay, 278; Bell v. Huggins, 1 Bay, 327; Chandler v. Marsh, 3 Vt. 162; Tillotson v. Grapes, 4 N. H. 448. The promise is not made for a promise, but for the land; the moving cause is the estate; and if that fails to pass, the promise is a mere nudum pactum. It was objected, that the rule of damages in an action on the covenant would be different from the consideration of the promise; but in the case of a total failure of title, the amount of damages would be the same; and it is just that a party should be allowed to show a total failure, in an action on the promise, instead of being compelled to seek his remedy on the covenants." But in Hoy v. Taliaferro, 8 Smedes & M. 727, it was held, that a vendee of land who has received a deed with covenants of warranty, and been let into possession, cannot, when sued at law on the notes given for the purchase-money, set up the defence of failure of consideration, without showing an actual eviction. See further, Knapp v. Lee, 3 Pick. 452; Trask v. Vinson, 20 Pick. 105; Cook v. Mix, 11 Conn. 432; Jenness v. Parker, 24 Maine, 289; Drew v. Towle, 7 Foster 412; Tyler v. Young, 2 Scam. 444; Gregory v. Scott, 4 Scam. 392; Slack v. McLagan, 15 Ill. 242; Scudder v. Andrews, 2 McLean, 464. But see Young v. Triplett, 5 Littell, 247; Cullum Branch Bank, 4 Ala. 21; Dunn v. White, 1 Ala. 645; Wilson v. Jordan, 3 Stew. & P. 92.

(p) Greenleaf v. Cook, 2 Wheat. 13; Howard v. Witham, 2 Greenl. 390; Wentworth. Goodwin, 21 Maine, 150; Morrison v. Jewell, 34 Maine, 146; Chase v. Weston, 12 N. H. 413; Lattin v. Vail, 17 Wend. 188; Jenness v. Parker, 24 Maine, 289.

a court of equity, where the failure of consideration is unliquidated, restrain an action on the note and bill, and order an ac count.(q)

It is certain that a mere inadequacy of value is not the same as, and has not the effect of, a total or a partial failure of consideration.(r) And we apprehend that the difficulty of discriminating between inadequacy and partial failure has been a principal cause of the conflict among the American cases as to the effect of a partial failure of consideration. They cannot be wholly reconciled; but we believe that the principles we have stated above are sustained by the weight of authority. It is quite certain, not only that fraud would always be a good defence, but that extreme inadequacy of value might be evidence of fraud, and the evidence would be stronger as this inadequacy was greater.

A partial want of consideration, like a partial failure, is a good defence pro tanto. But a distinction is to be observed between the two. A partial failure of consideration, as we have seen, furnishes no defence, unless the amount is ascertained and liquidated. But when there is originally a partial want of consideration, that will be a good defence pro tanto in all cases. Thus, if a note be given by a father to a son, partly in payment for services and partly as a gratuity, so far as it is given upon the latter ground it is without consideration, and this will be a good defence. And it is no objection, that there was no agreement or understanding of the parties, or any act or declaration of the maker, to designate what part of the aggregate amount of the note was intended to be a compensation for services, and what part to be a gratuity. The question, what amount was founded on one consideration and what on the other, is to be settled by the jury upon the evidence.(s)

(q) Glennie v. Imri, 3 Younge & C., Exch. 436.

(r) Solomon v. Turner, 1 Stark. 51.

(s) Parish v. Stone, 14 Pick. 198. In this case, Shaw, C. J., after citing the English cases, which establish the doctrine that a partial failure of consideration furnishes no defence, unless the amount is liquidated, said: “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

SECTION III.

OF ILLEGAL CONSIDERATION.

AN illegal consideration is a void one, for the reason that the law cannot recognize a value in that which it forbids, nor enforce

action. This distinction, and the consequence to be drawn from it, are alluded to by Lord Ellenborough in Tye v. Gwynne, 2 Camp. 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 seems, therefore, very clear, that want of consideration, either total or partial, may 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 con sideration, 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 evidence, showing that these different parts can be ascertained by computation; in other words, whether the evidence shows them to be respec tively 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 the 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 defendant to show to what extent the note is without consideration. Suppose a father proposes, upon his son's going into business, to aid him by an advance of several thousand dollars, and for that purpose gratuitously offers him his note for that sum; but as his son had performed services to the value of a few dollars, for which no price was agreed, upon giving his note, the father, intending to cancel and discharge that and all other claims, takes a general receipt for all services and other dues, and afterwards, the note not having been negotiated, a suit should be brought on it by the payee against the maker, might not the defendant show the want of consideration by way of defence pro tanto? and yet the amount must be settled by a jury, the evidence of the original agreement not distinguishing between what was payment and what was gratuity." And see, to the same effect, Loring v. Sumner, 23 Pick. 98; Folsom r. Mussey, 8 Greenl. 400; Stevens v. McIntire, 14 Maine, 14. In Forman v. Wright, 11 C. B. 481, to a count on a promissory note, the defendant pleaded that he "was indebted to one F: in the sum of £ 10 14s. 11d., and no more; that the plaintiff fraudulently, deceitfully, and falsely represented to the defendant that there was due from the defendant to F. the sum of £32 6s. 10d., and then demanded cf, and by