Rasberry v. Moye
Mississippi Supreme Court
In error from the circuit court of Monroe county; Hon. F. M. Rogers, judge. This is an action of debt brought by the defendant in error, against the plaintiff in error (Rasberry) in the circuit court of Monroe county.
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In error from the circuit court of Monroe county; Hon. F. M. Rogers, judge. This is an action of debt brought by the defendant in error, against the plaintiff in error (Rasberry) in the circuit court of Monroe county. The action was founded upon a writing obligatory executed by Rasberry to Moye on the 18th of December, 1847, for $750;'one third payable the 1st of March, 1849; one third 1850, and one third 1851. The pleas filed were, 1, payment; 2, fraud; 3, want of consideration; and 4, failure of consideration. The case being submitted to a jury, the plaintiff read his writing obligatory.…
1Opinion of the CourtJustice FisheR
The only question in this case necessary to be decided is, Whether a partial failure of consideration can be set up in an action on a promissory note or bill single.
This defence can be made in cases upon instruments for a sum certain, if introduced under a special plea. This point appears to have been so decided by this court in the case of Brewer v. Harris, 2 S. & M. 87, 88; Harman v. Sanderson, 6 Ib. 42.
Where a party makes a defence of only a partial failure of consideration, an offer to return the article purchased is not necessary.
The instructions asked by the defendant below were too…
2Cited by2 opinions
- Coulson v. StevensMississippi Supreme Court · 1920
- Collins v. TownsendCalifornia Supreme Court · 1881