Ferguson v. Huston

• Decision Date: 31 August 1840
• Citation: 6 Mo. 407
• Parties: FERGUSON v. HUSTON.
• Court: Missouri Supreme Court

6 Mo. 407

FERGUSON

v.HUSTON.

Supreme Court of Missouri.

August Term, 1840.

APPEAL FROM THE CIRCUIT COURT OF COOPER COUNTY.

ADAMS and HAYDEN, for Appellant. 1st. That a partial as well as a total failure of consideration is a defense in an action on a note for the purchase money of an article sold, to defeat the recovery in whole or in part. 2 Kent. Com. 473-4, third edition; 8 Cowen, 31; 8 Johns. R. 452; 14 Johns. R. 377; 9 Johns. R. 232; 15 Johns. R. 230; 6 Pickering R. 427; Fegan v. Meredith, 4 Mo. R. 514. 2nd. That the instruction given by the court required that the defendant should have given notice of the defects in the carriage to the plaintiff, and in this it was calculated to mislead the jury. 2 Pirtle's Digest, 240-1. 3d. That the plaintiff was an assignee of the note sued on, and against him the defendant could make the same defense, that he could against the payees before assignment, and do to this he was not required to give the assignee notice of defects, as set forth in the instruction. See Laws of Mo. Digest, 1835, title Bonds and Notes, page 104-5.

MILLER and LEONARD, for Appellee. 1st. That evidence in mitigation of damages for a breach of warranty in the sale of a chattel, or for a partial failure of consideration in cases not tainted with fraud, is inadmissible and should have been rejected by the Circuit Court in this case. See 12 Wheaton, 183, Thornton v. Wynne, cited in 6 Condensed R. 509, and cases cited; 1 Dana R. 273, Lightburn v. Cooper; 1 Littell, 279, Allison v. Noble. 2nd. That fraud in the sale of a chattel cannot be set up in bar of a recovery of a note given on such sale unless the vendee, on the discovery of the fraud, returns the article purchased, to the vendor, or shows it to be entirely destitute of value. See 3 Wendell, 236, Benton v. Stewart. 3d. That in this case, evidence in mitigation of damages is wholly inadmissible, as there was no evidence of any notice having been given by the defendants to the payees, of such insufficiency. See 3 Wendell, 236, Benton v. Stewart; Chitty on Contracts, 168. 4th. That the court very properly overruled the instructions prayed for by defendant, and very properly overruled the motion for a new trial and in arrest of judgment.

TOMPKINS, J.

Huston, assignee of J. L. and Milton Matthews, brought his action of debt against Ferguson on a note made by said Ferguson to said J. L. and Milton Matthews. The Circuit Court gave judgment against Ferguson; and to reverse that judgment this appeal is prosecuted. On the trial of the cause, after the plaintiff had given the note in evidence, the defendant introduced evidence to prove that the payees of this note were carriage makers, and that he was a carrier of the mail from Jefferson City to Boonville, in Cooper county, his residence, and that the payees resided in Columbia, in Boone county: and that the defendant in the fall of the year 1837, applied to the payees to make him a two-horse mail coach; that they undertook to make him a coach suitable for carrying the mail on said route, for three hundred dollars: that whilst they were making said coach, they were informed by the smith that the irons were too light and weak; and that said coach, when it was delivered to the defendant, had on it a thick coat of paint, calculated to hide its defects; and that after performing one or two trips, as a stage coach, it became so wrecked as to be unfit for use. The plaintiff gave some rebutting evidence. The defendant in the Circuit Court, appellant here, asked of the Circuit Court several instructions, which are in substance as follows: 1st. If they believe from the evidence, that the note sued on was made in consideration of a carriage manufactured by the payees of said note for said defendant, for the purpose of a mail coach; and if they also find that said carriage was worth nothing, then they must find for the defendant. 2nd. If they find that the consideration has wholly failed, they must find for the defendant. 3d. If they find a partial failure of the consideration of said note, then they must deduct the amount of such failure from the amount of such note. 4th. If they find that the carriage aforesaid was made for a mail coach, by the payees, and that it formed the consideration of said note, and that said carriage did not answer the purpose for which it was made, and that the defendant offered to return, the same in a reasonable time to the payees after it had come into his possession, then they must find for the defendant. 5th. If they find that the payees of the said note were carriage-makers, and as such made and sold the said carriage to the defendant, for the purpose of a mail coach, that in such case there was an implied warranty on the part of the payees, that the said carriage would answer the purpose for which it was made and sold, and if they further find that the carriage did not answer the purpose aforesaid, then the said payees are liable to the said defendant upon the warranty aforesaid, and that the amount of the said damages are to be taken into consideration by the jury, and deducted from the amount of the recovery by said plaintiff upon said note. 6th. That although the defendant did not offer to return the said carriage in a reasonable time, and although he gave no notice of its defects to the payees of the note, yet if the jury find that it was purchased for a mail coach, and formed the consideration of the said note, and if they further find that it was made and sold to the defendant by the payees aforesaid as carriage-makers, and if they further find that said carriage did not answer the said purpose, then they must take into consideration such defects, and deduct the amount of the same from the plaintiff's recovery. The Circuit Court refused to give any of the instructions above prayed. The Circuit Court having refused the instructions asked above, gave these following: 1st. If the jury believe that the work was fraudulently executed or that it was done by contract for a certain purpose and failed to answer the purpose for which it was designed, and shall further find that it was wholly worthless, they will find for the defendant. 2d. But if the jury believe the work was worth anything, and that the defendant has failed to give notice of its defects, in a reasonable time to the plaintiff, or to return the same, then he is to be presumed to have acquiesced in the defect of the work, and is not entitled to any deduction from the amount of the note. The instructions given by the court were excepted to, and the refusal of those asked was also excepted to. A new trial was also asked and refused. The reasons assigned for asking a new trial, were that the court had erred, both in giving and refusing instructions as above mentioned. So much of the instructions asked by the defendant, and so much of those given by the court, as relates to the necessity of an offer to return the carriage, to entitle the defendant to a verdict, is not warranted by the evidence in the cause; there being no evidence given that the defendant did offer to return it.

The points material to a correct decision of this cause are: 1st. If the carriage be worth anything, can the defendant avoid the payment of his note without either returning or offering to return the carriage within a reasonable time after the discovery of the unfitness of said carriage for the purpose for which it was constructed? 2d. Is the defendant entitled to a set-off against his note for any omission of the payees to execute the work faithfully and skillfully?

It is admitted by the counsel for the appellee, plaintiff in the Circuit Court, Huston, that there are authorities on each side; but as those authorities are diligently collected by the respective counsel, and will be, under the provisions of the statute, printed along with this opinion, I shall not review them, but content myself with giving my reasons for my own opinion. To this method I am the more inclined, because the court at this term consists of only two Judges, and they differing in opinion, the judgment of the Circuit Court is affirmed by operation of law.

We learn from Bacon, that “At common law, if the plaintiff was as much or even more indebted to the defendant than the defendant was indebted to him, yet he had no method of striking a balance; the only way of obtaining relief was to go into a court of equity. To remedy this inconvenience, it was enacted by statute 2d of George II, that where there were mutual debts between the plaintiff and defendant, or if either party be sued as executor or administrator, where there are mutual debts between the testator or intestate and either party, one debt may be set off against the other; and such debt may be given in evidence on the general issue or pleaded in bar, as the nature of the case shall require, so as at the time of pleading the general issue, where any such debt of the plaintiff, his testator or intestate, is intended to be insisted on in evidence, notice shall be given of the particular sum or debt intended to be insisted on, and upon what account it became due,” &c. 6 Bacon, title Set-off, letter A. At letter C. in the same title, the author tells us that “It having been doubted whether mutual debts of a different nature could be set off against each other under the above clause of the act of the 2d of George II, it was enacted by 8th George II, that by virtue of the said clause mutual debts may be set off against each other, either by being pleaded, &c., notwithstanding such debts are deemed in law to be of a different nature,” &c. Under these acts it was decided that a set-off cannot be pleaded to an action of covenant for general damages, so neither can uncertain damages be pleaded by way of set-off to an action of covenant for rent. See same author, same letter and title. “And a defendant cannot set off a claim for bad debts made by the misconduct of the plaintiff in selling goods as factor; such misconduct is...