Alabama state intelligencer., 1831-07-23

cided in the accompanying Opinion is one of muct importance to the community generally and wil considerably affect the rules practice in our Courts You would, therefore, confer favor on many of you subscribers by publishing it. A. s.
 SUPREME COURT OF ALABAMA.
 Opinion ofhe Supreme Court of Alabama, delipered
 at July Term, 1881. By Judge Collier
 WM. T. PEDEN p8. WM. l.. MOORE.
 The defendant in error brought his action against the plaintiff upon promissory note.- The pleas were failure of consideration, pay ment and set off On the trial the counsel for the plaintiff in error moved the Court to in- struct the jury "that if they believed that the consideration of the note had failed to the full amount except what had been paid that they should find verdict for the defendant, which charge the Court refused to give: but charged the jury that although part of the money might have been paid, and that the considera- tion had failed to larger amount than the balance due, yet unless total failure was pro- ven to the whole amount of the note, then they should find for the plaintiff the balance not paid. The record does not disclose any part of the testimony given on the trial.
 This case presents question of great intri- cacy--it is this: Is the partial failure of the < defence in reduction of the sum souglt to be recovered3 The perplexity experienced in examining this question, arises not iron its in- trinsic difficulty, but rather from the g'eat va riety of decisions which have been made up- on the point. Amidst this conflict of opinion, we arc naturally led to review of the autho- rites as the surest guide to a correct conclu- sion.
 And l would premise, that it may be laid down as a legal position that with regard to their efficacy and properties, there is no diff ference at common law, between verbal and written contracts; but the difference is be- tween parol or written contracts and special ties C T. Rep. $50 Chitty on Con. 2.) So far as this case is concerned we have no sta tute varying the common law in this p lrticu- lar: hence every defence which may be made against verbal contract is allowable against one which is merely written.
 Starkie in treating of the consideration of contracts says, that it is now completely settled that a partial failure which may be the sub ject of an action for uniquidated damages, and which leaves the whole of the contract open and unrecinded, cannot be inquired into in an action on bill or note; but where the partial failure arises from a fraud it is d defence to the action @ Starkie's Co. 2S0.)
 | Chitty in his treatise on bills, observes that where the consideration of bill fails, in part, as to specific liquidated amount, the fact may be shown in defence at law; but where a | partial failure of consideration arises from un- lquidated damages sustained by breach of a subssting contract, the performance of which was the consideration ot the bill, such breach cannot be vestigated in an action on the bill, but the defendant must rest to his cross action. | (Chitty on bills, 7th Am. edi. 71.)
 The younger Chitty in his treatise on con- tracts, publication of more recent date, re- marks that the Courts have oflate, to prevent circuity of action and unnecessary litigation, allowed d defendant in case of partial failure of consideration, instead of bringing a cross ac- tion, to object, in reduction of damages, such partial failure of consideration-(C Chitty on Con. 276; and see also Chitty's Com. L. 153 -1 Chitty Pl. 4th. ed. 2S1-Rep 159-3 N. Hamp. R. 455.)
 This may suffice to show the opinions of the | latest elementary writers. We now proceed to an examination of the adjudged cases on | which they predicate their assertions of the law.
 In Barber vs. Blackhousc (Peake's Cases 61) the payee brought an action on a bill of exchange,-the defendant paid part of the money into Court, and it appeared upon trail that there was no consideration for the resi- due. It was however urged for the plaintiff, that the payment of the money into Court, admitted the bill was good for part, and if it was good in part, il was good in toto. But Id. Kenyon declared himself clearly of contra ry opinion: whereupon the jury found for the defendant, and the plaintiff acquiesced. Ledger vs. Ewen (Peake's Cases 216) was an action by the payee of bill against the acceptor. The consideration appeared to be, | that the plaintiff had taken the defendant in- to partnership; but on the defendant friends | advice he dissolved the connexion: there was evidence of fraud on the plaintiff $ part in drawing the defendant into the engagement, which Id. Kenyon left to the jury, with the instruction that if they were against the de- tendant on the evidence of fraud, they should take into consideration the amount of dama- ges which the plaintiff had sustained, and were not obliged to find more.
 | In Morgan vs. Richardson, q Camp. 40 note) the drawer of bill payable to his order, brought suit against the acceptor. The de- fence relied on was that the bill had been ac- cepted for the price of some hams purchased ot the plaintiff by the defendant, to be sent to the East Indies, which were almost quite un- marketable. The sum for which they were sold by the defendant was paid into Court Lord Marlborough held, that though, where the consideration of a bill fails entirely, this will be a sufficient defence to an action upon it, by the original party, it is no defence to such action, that the consideration fails par tially, but that under such circumstances the remedy is by cross action.
 In Fleming vs. Simpson, q Camp 40 note) Lord Ellenborough ruled, that if there was fraud on the part of the seller in shipping a commodity of a quality very inferior to that order, it would constitute an available defence to an action predicated upon sush sale; but if