The opinion of the court was delivered by
Woodward, J.When the parties came to trial this was an action of assumpsit upon the common counts for goods sold and delivered, but to that cause of action the defendants exhibited a complete defence. They showed the receipt of Stuart & Brother dated 22d October, 1852, for three notes, one at eight months from 81st August, one at eight months from 3d September, and one at eight months from 6th September, each for $2435.81; and another receipt of 30th November, 1852, for another note at eight months from 3d September for $471.95. These notes were given in payment of the goods, for which the action was brought, and having been taken up by the defendants, who produced them on the trial, the plaintiff’s action was fully answered, and upon the pleadings then upon the record, the verdict and judgment must have passed for the defendants.
But the plaintiffs, by leave of the court, filed six additional counts, four of which were upon the above-named notes, and the other two on a written agreement of Blum & Simson, dated 21st March, 1853, whereby they agreed to pay plaintiffs 15 per cent, of their claim in cash, and 25 per cent, in acceptances of S. & D. Teller, and if they should pay any other creditor a greater sum than 40 per cent, of his claim, they were to pay Stuart & Brother a similar amount, provided such amount should exceed $1000. The plaintiffs averred that the notes were unpaid, and that the defendants had paid others of their creditors 100 per cent, of their claims which exceeded $1000 respectively, and therefore claimed a right to recover both on the notes and the agreement.
To meet these causes of action, the defendants put in the composition agreement or release of 21st March, 1853, whereby a large number of their creditors, the plaintiffs included, agreed with Blum & Simson, and with each other, to accept in full payment *229of their respective claims 40 per cent, of the principal sums thereof, in manner following: 15 per cent, cash, 15 per cent, in one year, and the remaining 10 per cent, in eighteen months, without interest. It appeared that the defendants had paid plaintiffs the 15 per cent, cash, and given them paper of third parties for 25 per cent., which matured and was paid to plaintiffs after this suit was brought, and these facts constituted, they said, a defence to the plaintiffs’ amended action.
The reply was that the composition agreement of 21st March,. 1853, had been obtained by fraudulent concealments and misrepresentations, and was- void. This raised a question of fact which was submitted to the jury in the most appropriate manner by the court, and it was found against the defendants. The fraud was established.
The court also ruled that the agreement of Blum & Simson, of even date with the general release, was void in the hands of the plaintiffs, on the ground that, being parties to the composition agreement, it was not competent for them to take from the debtors a secret agreement for more than their fellow-creditors were to receive. This doctrine is agreeable to those principles of open and fair dealing, which should characterize all mercantile transactions, and is sustained by the authorities cited by the counsel of the plaintiffs in error.
The upshot was that the plaintiffs recovered on the first four amended counts, the balance of 60 per cent, due on their original debt. The cause was decided just as if nothing had happened since the notes of October and November, 1852, were taken, except the payment thereon of 40 per cent. Both agreements of 21st March, 1853, were ignored, and properly: the general release because it was fraudulently obtained — the private agreement of the defendants because it was in fraud of creditors who were associated with the plaintiffs in the general release.
It was insisted that'the plaintiffs were bound by the composition release because they had received their 40 per cent, under it. But if it was void from the beginning, their debt was unaffected by it, and they might with a good conscience, and without impairing their claim to the balance, retain whatever had been paid. The payment is not to be referred to the void contract, but to the original indebtedness. Confirmation of a void contract must be supported by a new consideration or it is nudum factum, and the reason why there is here no consideration for the alleged confirmation, is that the plaintiffs had a legal right to receive and retain the 40 per cent, in part payment of a valid and subsisting debt. True, it was paid on the footing of the void contract, but, that being set aside, we have the case of a creditor in possession of the debtor’s money to the extent of 40 per cent, of the debt. May he not' retain it and sue for the balance ? What is decisive of his right *230is, that if the debtor had sued for the 40 per cent, the debt might have been defalked against him.
There was no error, therefore, in' negativing the defendants’ 2d and 5th points, and in charging that the plaintiffs were not concluded by receiving the composition notes.
Nor have the defendants reason to complain of the admission in evidence of their agreement of 21st March, 1853, because it was part of the transaction that must needs be explored, and it was not permitted to operate against them as a substantial cause of action.
The amendments to the narr. were all made “on the trial,” and so were within our statute of amendments.
It is said the judgment must be reversed because some of the counts were defective, and the verdict and judgment were general. But which counts were defective ? True it is, that, under the evidence in the cause, the plaintiffs were not entitled to recover on the common counts, nor on the two special counts on the defendants’ agreement, and the court would doubtless have so instructed the. jury had they been requested. They might indeed have entered judgment on'the counts upon the notes, and thus have silenced this complaint, but if all the counts disclose a good cause of action the judgment is not to be reversed because it was general. Where a narr. contains several counts, some of which on their face import no cause of action — as where in slander words are charged in certain counts which are not actionable, or in assumpsit money is claimed on a contract which, as set forth, shows it was not due when the action was brought — a general judgment is ill. It should be entered only on such counts as show that the plaintiff had a good cause of action when suit was brought. But this is not a case of defective pleading. Every count in the plaintiffs’ narr. contains a cause of action. The amendments allege no breach, but the general breach that follows the common counts is applicable to them, and if it were not it would be immaterial after verdict: 6 W. & S. 557; 7 Barr 241. It results as a conclusion of law from the evidence, not that any of the counts are bad, but that the plaintiffs were not entitled to recover on certain of them, and the time to have taken advantage of this was on the trial.
Failing to perceive any error in the record, for which the judgment should be reversed, it must be affirmed.
Judgment affirmed.