People ex rel. Fleming v. Niagara C. P.
New York Supreme Court
On a rule to show, cause, it appeared that Fleming brought an action of assumpsit in the C. P. against J. & A. Colt. The declaration contained the common counts; the defendants pleaded the general issue, and gave notice of set-off.
Read the full summary
On a rule to show, cause, it appeared that Fleming brought an action of assumpsit in the C. P. against J. & A. Colt. The declaration contained the common counts; the defendants pleaded the general issue, and gave notice of set-off. The cause was referred, and on the hearing before the referees, the plaintiff produced a promissory note against the defendants for $350. The defendants offered to prove that the consideration of the note was a quantity of hats sold and delivered to them by the plaintiff; that in the sale of the hats, the plaintiff was guilty of fraud and deceit, and that the note…
1Opinion of the Court
*247 By the Court,
Sutherland, J.
A total and entire failure of consideration, on the ground of fraud or otherwise may be given in evidence under the general issue without notice; but a partial failure cannot be given in evidence without special notice; it does not go to the foundation of the action, and show that the plaintiff is not entitled to recover any thing, but is merely in mitigation of damages. Spalding v. Vandercook, 2 Wendell, 431. Burton v. Stewart, 3 id. 238. Reab v. M’Alister, 8 id. 109. In this case there was no notice given, and the offer, I think, cannot be considered as going to…
2Cases cited1 opinion
- Spalding v. VandercookNew York Supreme Court · 1829
3Cited by13 opinions
- Wood v. StrotherCalifornia Supreme Court · 1888
- People ex rel. Griffin v. SteeleNew York Supreme Court · 1848
- People v. Judges of Oneida Common PleasNew York Supreme Court · 1839
- Fish v. WeatherwaxNew York Supreme Court · 1801
- Vielie v. OsgoodNew York Supreme Court · 1849
8 more not listed; retrieve them via the Exa API.