Street v. Mullin

Sullivan, J.

Assumpsit on'a promissory note. The defendants pleaded nine pleas. The first and fifth were withdrawn,Issues to the country were 'made on the second, third, fourth, and ninth. pleas,' and general, demurrers were filed to the sixth, seventh, and eighth. The demurrers were overruled and judgment" was given for the,'defendants. The only question is whether the pleas demurred to, or either of them, were a bar to the plaintiff’s action? 1 - ‘

The sixth plea' states, that the. note in- the declaration mentioned was given-in part consideration of a lease by the plaintiff to Mullin, one of the defendants, of a certain tract of land, sáw-mill, and buildings owned, &,c., for the term of three years, &c., and for no other consideration whatever; that the plaintiff, at the time,.&c., warranted the said.mill to be.in good condition,.and' to do good work; but defendant, avers that it was not then, in - good • condition and would not do good work,' but was wholly'useless; wherefore the consideration of said note has wholly failed, ,&c. The seventh plea alleges, that the note was given'* in consideration of a. lease to Mullin by the plaintiff of a certain tract of land, saw-mill,'and buildings; that at the time of the execution of said lease, plaintiff falsely and fraudulently represented the said saw-mill to be in á condition to do good' and profitable business, &c.; in consequence of which said false and fraudulent representation, the said defendants executed "the said promissory note in part.consideration of the rent aforesaid; that the said saw-mifl, at,- &c., was not in ,a condition to do a good and profitable business,' but was worthless, &c.; wherefore the consideration of said note has wholly failed, &c. The eighth plea-is substantially the same as the sixth.

/. Ryman, for the appellant.'

C. H. Test, for the appellees.

//■If the-rent of the saw-mill had been fhe only consideration of the note sued .on; we might have had some hesitancy in deciding'against the validity of the pleas’., But in addition to •the mill, a tract of land on which other buildings were erected was a part of the consideration. The land and buildings constituted, for aught that appears, a large part of the consideration of the note, and the defendants do not plead that they were of no value. • As to that part of the .consideration ,thé pleas are silent. A plea that professes to answer the whole declaration, and answers part only, is bad on -general demurrer. 1 Ch. Plead. 554. In this case the pleas do not answer all they a'ssume to answer., - They .profess to set up a total failur'e.of the-consideration, and show a.partial failure only-. The defence -is not a bar to the whole, action. Wynn et al. v. Hiday, 2 Blackf. 123, and note; The Court, therefore, erred in overruling the demurrers to -the pleas.- •

Per Curiam.

The judgment is -reversed with costs. Cause-remanded, &c.