Lufburrow v. Henderson ( 1860 )

By the Court.

Stephens J.,

delivering the opinion.

The only reason stated in the bill of exceptions for the rejection , of the proposed evidence, is, that the effect of it would be to alter and add to the written agreement. This •reason applies only to so much of the evidence as went to show a verbal contract apportioning to these particular three notes, as their special and peculiar consideration a certain .part of that which the writing states as the general consideration of all the notes. That part of the evidence was properly rejected, but there was another portion which went to show, not a contract, but material facts. The writing evidences that Henderson had sold to Lufburrow his interest in their common business, embracing “all things.” What were “all things,” or what was any one of them? The writing gives no information on the point, and if the particulars, not of the contract, but of the property which falls within the terms of the contract, cannot be shown by parol proof, then this instruments and all other instrument which convey by terms of general description, are not worth the paper on which they are written. They are snares, and not contracts; for while they prove nothing themselves, they yet withhold the party who takes them from proving anything by other means. “All things” were the consideration of all the notes, and the jury had to inquire of what these things consisted, what ones of them had failed, and what was the proportionate value of such as had failed. Whether or not there was a business stand and run of custom of amounting to an item of value, and if so, what proportion that item bore in value to the other items composing the general consideration, were matters to -be ascertained in arriving at any conclusion as to a failure of consideration and the extent of it, and matters to be proven by anybody who knew the facts, or by the acknowledgements of Henderson. If he had said that the stand and run of custom was worth three thousand dollars, and had treated it as was worth so much, those were proper facts to go to the jury against him, not as showing a contract to bind him, but as any other piece of evidence, to assist the jury in arriving at the true proportionate value of that item in the consideration. But surely the reason given, (that the evidence would alter or add to the written agreement,) cannot apply to that part which went to show that Henderson had violated his written agreement, by setting up an opposition business in Savannah.

2. It was attempted in the argument to justify the exclusion of this last named evidence and all the rest of it, upon the ground that the defendant cannot avail himself of these facts as a defense to this action, but must bring an action of his own for a breach of the agreement by the plaintiff. Cases there are which support such an idea, but they are outweighed by the strong reasons which have embodied themselves injthe comparatively modern doctrine of recoupment, which is but a liberal and beneficien! improvement upon the old doctrine of failure of consideration,. It look sthrough the whole contract, treating it as an entiety, and treating the things done, and stipulated to be done on each side, as the consideration for the things done, and stipulated to be done, on the other. When either party seeks redress for the breach of stipulations in his favor, it sums up the grievances on each side, instead of the plaintiff’s side only, strikes a balance, and gives the difference to the plaintiff, if it is in his favor. It has not yet been carried so far as to give the defendant the difference which may be found in his favor, because he has not sued, and the statute of set-off does not apply to such a case. The statute ought to be made to apply, and then the doctrine would be complete in its symmetry and in its equity. The statement of it commends it to every lover of justice. The defendant in the case before us only asked that the plaintiff’s stipulation to refrain from opposi- „ tion to him, might be valued by evidence, including the plaintiff’s own assertions upon the point, and that he might be allowed for the breach of it, a proportional abatement from his stijmlation to pay the notes. We think he was entitled to his demand. Judgment reversed.