Thrall v. Horton , 44 Vt. 386 ( 1872 )

The opinion of the court was delivered by

Royce, J.

The only question reserved for the opinion of the court in this case is, whether the court erred upon the facts shown in ordering a verdict for the defendant. The plaintiff knew' what the consideration of the note was when he took it, hence he took it subject to any defense, as far as the consideration was concerned, which might have been made to it if ho had taken it when overdue. Counsel have assumed in argument that the only consideration for the note was the agreement to discontinue the suit then pending in favor of Chaplin against John H. Horton, and claim that inasmuch as that suit was not discontinued, but was kept in court against the objection of the defendant, until it was .finally abated by the death of the plaintiff, at the September term, 1868, that the consideration for the note has wholly failed. But the case finds that the matter in controversy in the suit in favor of Chaplin and against John H. Horton was settled by the payment of five dollars, and the giving of the note in question, and that suit was to be discontinued. The agreement to discontinue'the suit formed a part of the consideration for the note, and the settlement of the subject matter in controversy in that suit formed the other part.

The cause of action in that suit was merged in the settlement, and the defendant could have availed himself of that settlement in defense of that suit or any other that Chaplin might have brought for the same cause oP action. In order to justify the ruling of the court it must have appeared that there had been a total failure of the consideration for the note, for the rule is well settled in this State that a partial failure of consideration cannot be set up as a defense to a note. Williams v. Hicks, 2 Vt., 36 ; Walker v. Smith et. als., 2 Vt., 539; Stone v. Peake, 16 Vt., 213 : Cragin v. Folwer & Corbin, 34 Vt., 326 ; Clough v. Patrick, 37 Vt., 471.

The statute of November 21st, 1867, has changed the common, law so far as to permit such a defense to be made when the suit is between the original parties to the note, but it does not extend the right beyond such parties.

It is evident from the case as stated, that the failure to perform the agreement to discontinue the suit only amounted to a partial failure of the consideration for which the note was given, and hence the ruling of the court that the consideration for which the note was given had failed, and directing a verdict for the defendant, was erroneous.

Judgment reversed, and cause remanded.