Nichols v. Hunton , 45 N.H. 470 ( 1864 )

Bell, C. J.

In Drew v. Towle, 27 N. H. 412, it was decided that a partial failure of consideration is a good defence to a promissory note, where the amount to be deducted on that account is a matter of mere computation. It is otherwise, where such amount depends upon the ascertainment of unliquidated damages, and so early as the case of Earl v. Page, 6 N. H. 477, it was held, that, where a note had been partially paid, a failure of consideration, to a greater amount than the balance unpaid, was a bar to the action. So, in Haseltine v. Guild, 11 N. H. 390, a partial failure of consideration was held a good defence pro tanto in certain cases; while it was decided in Sanborn v. Osgood, Grafton, 1843, that a partial failure of consideration, arising from fraud of a seller, is no defence to a promissory note, unless the entire contract is rescinded. It may therefore be regarded as settled, that the defence here attempted to be set up is inadmissible at the common law, as it is held in this State. It is founded in fraud, or an agreement to pay an indefinite and unascertained amount of damages, and it is offered, not merely as a bar to the whole claim, nor to the whole balance supposed to be due, but as a partial defence, if it should not be found sufficient to cover the whole. But, by the statute of 1861, ch. 2497, passed more than six months before the commencement of this suit, sec. 1, it is enacted, that, whenever in any action upon a bill of exchange or promissory note, a total want of consideration would be a defence, it shall be lawful for the defendant to prove a partial want or failure of consideration in reduction of damages, having first filed a brief statement thereof at such time as the court shall order.

This statute applies to and governs this case, and the defence offered is competent and legal. The statute does not change the rights of the parties to this contract, because the off-set of the two claims could before be made by circuitous proceedings leading to the same result, which can now be reached directly under this statute.

Verdict set aside.