The-objeetioh .that .the defendants; were-not- liable upon- the note, having signed in the. character of- trustees, was- properly overruled. The addition of trustees; &e., is a mere; descriptio joersonarum. (9 John. 384.)
The, remedy: on the warranty was against' two persons, partners; and though the plaintiff was. one,- it is. questionable whether the defence for breach of warranty,, is- allowr able.in such a-case,.
But waiving that questionit wasprovided.that if there should.be,a breach of- warranty, the defendants shouldibe entitled to redress iby-having, the bell recast. Until there was a- refusal toN comply,, there .-was - no- right of action in the defendants. The evidence' was insufficient to show that the persons warranting were in default. As to Hanks; if it be conceded-: that he had., left': the county, for aught that, appears, Hills was- there, ready'and willing to-recast the bell; and yet no application was made to him. Damages for nonperformance-do notarise- in such a case, till neglect or omission.be.shown,..after- a request to perform,
*34Under the general issue in assumpsit, any niatter which shows the plaintiff has no cause of action, may be given in evidence. (1 Chit. Pl. 472.) In this case there was not a total failure.of consideration; for. the bell, although cracked, was of some value. It is not. pretended that there was any fraud or deceit.. Had there been, it would have been competent proof under the general issue; (15 John. 230,;) *and it seems that if the unsoundness of an article, merely produce a partial diminution of value,, it may be shown in mitigation of damages,, provided, there.was a. fraudulent representation. (13 John. 302.) If the plaintiff had refused to recast the,bell, I, incline, to. think, the partial failure of consideration might also be.a defence in.mitigation, although there be no fraud. Such a defence has been allowed in suits for work and labor by builders; and seems to be approved of in Runyan v. Nichols, (11 John. 548;) although it was not expressly decided in that case, that the client could set up the negligence of the,, attorney in conducting the suit. - It was held that notice of the defence ought to be given; and that to allow it without a previous, notice, would be unwarrantable and unnecessarily rigorous. In this case, the attempt is, to show in mitigation of damages, a-breach of the warranty. Had it- been established, perhaps the evidence would" have, been proper-in mitigation. In Basten v. Butler, (7 East, 481,), the case, of King v. Boston is cited. (Ibid, note a.)- It appeared that the plaintiff had sold to the defendant a. horse,- warranted sound, for 12-guineas, of "which the defendant had paid three. The horse was not sound; and, the defendant refusing to pay any more, the action-was brought to;re cover the difference. It was proved that the ■ horse, at the time of the sale, was not worth more than £111s. 6d. lordl Eenyon held that the plaintiff could only recoverthe value ;• and more having been paid by the defendant, he non-suited-the plaintiff. The court in the principal case, lay down, the rule as to notice, that where a specific sum. has been agreed to.be paid, notice ought to be given; otherwise the plaintiff would have, ground to complain of surprise, if evidence be allowed to show--that the'work.and- materials: *35were not worth so much as was contracted to be' paid; but that, ón a quantum merml3 he must come prepared to show that the work done was worth so much; and 'therefore there could be no injustice to him, in suffering this defence to be entered into, even without notice.
*It is not-necessary, however, to decide any thing more than that the defendants have not done enough to raise the question whether a breach of warranty can be a defence in mitigation of damages, when the action is brought on a note, the consideration of which was the sale of a chattel warranted; nor whether in such cases notice must be given.
The evidence having been properly overruled, the plaintiff is entitled to judgment.
Judgment for the plaintiff