This action is upon a note of hand, not negotiable, given by the defendant to the plaintiff. An account filed in set-off, being objected to by the plaintiff, was excluded by the Judge.
In defence, subject to objection, was introduced a written contract, by which the plaintiff was to deliver to the defendant, within certain times, quantities of timber and plank, at agreed prices; and evidence tending to show, that the timber was delivered, and a violation of the contract in respect to the plank, to the damage of the defendant; also evidence, that a contract by the plaintiff with S. Cobb & Co., for the delivery of timber and plank, similar to that with the defendant, was entered into, under which the timber was delivered and a note taken therefor on settlement, and an omission to deliver the plank.
*195The Judge instructed, the jury, that if the plaintiff had not performed his contract to deliver the plank to the defendant, by reason.of which non-performance, the defendant suffered actual damage, whatever the plaintiff was indebted to the defendant, for such damage, should be deducted from the plaintiff’s claim in this suit, and if such damage was equal to, or greater than, the whole amount due upon the note, the plaintiff could not prevail.
The counsel for the defendant attempts to sustain the instructions upon the ground, that the note was given for the timber delivered under the contract, and the note not being negotiable, the whole contract for the delivery of the plank, as well as the timber, is open; and that the damage arising from the omission to deliver the latter, according to the contract, can be taken into consideration in this action.
The question is not presented, whether such a defence to the note can be made. We are to decide, whether the rulings and instructions of the presiding Judge were correct or otherwise; and we give no opinion upon the matter discussed on the part of the defendant, touching the right of the defendant to set up the plaintiff’s violation of his contract, to prevent his recovery upon the note. The evidence, that the plaintiff had made a contract with S. Cobb & Co., and. had settled for timber delivered by taking a note therefor, which was not negotiable, as was stated in testimony, was incompetent, for the purpose of proving that the note in suit was given for the timber, delivered under the plaintiff’s contract with the defendant; and, moreover, it is difficult to perceive, how it tends to prove the consideration of a note, having no connection therewith.
But the instructions were not given, upon the hypothesis that the note in suit was made on account of the timber, which the plaintiff delivered to the defendant under the contract between them; but the right of the defendant to a verdict, was put exclusively upon the ground, that his damage by reason of the violation by the plaintiff of his agreement to deliver the plank, was equal at least to the amount of the *196note, -without regard to the consideration thereof. This, we think, was erroneous.
Exceptions sustained, verdict set aside, and new trial granted.
Appleton, May and Goodenow, J. J., concurred. Hathaway, J., concurred in the result.