Vrooman v. Phelps , 2 Johns. 177 ( 1807 )

Tompkins J.

delivered the opinion of the court. The only question is, whether the demurrer to the plea is well taken. No authorities were cited upon the argument to show that a specialty could be invalidated for any other cause than the illegality of the consideration, which makes it void from the beginning. In this case, the consideration for the bill, or sealed obligation of the defendant, was a slave sold to him by the plaintiff. This was a fair, legal, and valid consideration. In the case of Dorlan v. Sammis,^* decided in this court, it was held, that the want or failure of consideration could not be set up at law to impeach a specialty.. The principle on which that decision was founded, applies to the present case. It has been repeatedly decided that the breach of a written warranty as to the quality of goods sold, cannot be pleaded in discharge of a bond given for the consideration.— Much less ought parol representations, as to the quality of a thing, made antecedent to the contract, though false and fraudulent, and though they may have induced the defendant to make the purchase, be pleaded in avoidance of specialty. Whether the plaintiff must seek his remedy at a court of equity, or whether an action at law be maintainable on the case disclosed in his plea, need,not now be determined. We are of opinion that the special case set forth in the plea forms no valid defence to this slIit, and that the plaintiff is therefore entitled to judg-

Judgment for the plaintiff.

* Dorlan v. Sammis. This case came before the court on a writ of error from the court of common pleas, in Queen's county. It was on an action of debt on a common bond. Under the plea of the general issue, the defendant gave notice that he would offer in evidence on the trial, that the bond, mentioned in the declaration; was given for the price of a negro woman, claimed by the plaintiff to be hi? slave, and sold to the defendant as a slave; but in fact, the negro woman was then free, and not the property of the plaintiff. The court below refused to admit the evidence, and a bill of exceptions was taken by the defendant.

C. I. Bogart, for the plaintiff in "error.-"

S. Jones,'yin. contra.

Per Curiam,. The question is, Gan a defendant in a court of law, get rid of a bond given upon the sale of a chattel, on the ground of a failure of consideration ? There is no allegation that the plaintiff sold the chat-te\ fraudulently, and knowing that he had no title. There is no case in which a hondean be set aside, but where the, consideration was void in law, or where there was fraud. A mere failure of consideration is no defence at law. ^(a) On a sale in good faith, and without warranty, the-buyer takes the risk.

Judgment affirmed.

(a) Surely a mere failure oj consideration can have its origin in fraud, and frequently betrays the odiousness of fraud in as pernicious a point, of view, as the most manifest acts of deception at the period of negociation, »