Morgan v. Printup Bros. & Pollard , 72 Ga. 66 ( 1883 )

Blandeord, Justice.

■ 1. The defendants in error sued plaintiffs in error on four promissory notes, two for the expressed consideration of one steam engine and one cotton press, two for expressed consideration of one cotton gin. Defendant pleaded that the-consideration of the notes for' the steam engine has entirely failed, etc.; and the consideration of the gin notes-has failed, because the gin was represented as a good gin, when, on the contrary, the ribs of the gin were made of inferior soft metal, and wore out the first season, etc.

The court charged the jury, inter alia: ‘As to the «agine, defendant pleads a total failure of consideration. Me might have pleaded a partial failure of consideration, hut he has seen fit to plead a total failure of consideration. I charge that, to sustain this plea, he must establish to your .satisfaction that the engine was entirely worthless. If you find any evidence before you as to a partial failure of consideration as to this engine,.you cannot consider it under this plea of total failure.’ To this charge the defendants «xcepted, and on this exception error is assigned.

The plea in this case is sufficient, under .the judiciary act <of P799, which is embraced in our Codo; it plainly, folly .and distinctly sets forth the defendant’s defence to this ■action, and when applied to the plaintiffs’ cause of action, it is a plea of partial failure of consideration. The notes sued on were given for a steam engine, cotton press and .gin, and no failure of consideration is alleged in the plea •as to the cotton press; as to that plaintiffs can recover for ■its full value.

2. We are also of the opinion that, strictly under a plea of total failure of consideration, a defendant would be entitled to an abatement of the sum agreed to be paid,' if the proof ¡should show that there had been a partial failure of consideration and its extent. This plea of total failure of consideration includes partial failure. Omne majus continet ,m se minus. So this charge of the court was error.

Judgment reversed.