Davis v. Wait
Oregon Supreme Court
Marion County. Defendant appeals. Action on a bill of exchange indorsed before maturity, drawn on the defendant July 23, 1883, at nine months, by Fish Bros., of Racine, "Wisconsin, and accepted by defendant.
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Marion County. Defendant appeals. Action on a bill of exchange indorsed before maturity, drawn on the defendant July 23, 1883, at nine months, by Fish Bros., of Racine, "Wisconsin, and accepted by defendant. Defense, partial failure of consideration, known to the plaintiff when he took the draft, pleaded as follows: “ That the plaintiff before he claims to have received said draft by indorsement had notice and knowledge of the terms of the contract and agreement between Fish Bros. & Co. and the defendant, and of its violation by the former in the respect hereinbefore set out.” This allegation…
1Opinion of the CourtWaldo, C. J.
The answer set up a good defense of notice, and the court erred in the instruction which cut it off. Partial failure of consideration of a bill of exchange may be set up to an action on the bill, and the defendant may recoup his damages, though they be unliquidated. (Withers v. Green, 9 How. 224; Stacy v. Kemp, 97 Mass. 166; Wyckoff v. Runyon, 4 Vroom, 107.) If an indorsee take a bill with notice of the failure of consideration, his right to recover cannot be superior to that of his indorser. (Herrick v. Carman, 12 Johns. 159; 1 Par. Bills and Notes, 258.) Counsel for the plaintiff argued,…
2Cases cited5 opinions
- Withers v. GreeneSupreme Court of the United States · 1850
- Herrick v. CarmanNew York Supreme Court · 1815
- Stacy v. KempMassachusetts Supreme Judicial Court · 1867
- White v. . SpencerNew York Court of Appeals · 1856
- Bank of Illinois v. BradyU.S. Circuit Court for the District of Michigan · 1843
3Cited by6 opinions
- Dippold v. Cathlamet Timber Co.Oregon Supreme Court · 1920
- Weishaar v. PendletonOregon Supreme Court · 1914
- First National Bank v. MorganOregon Supreme Court · 1929
- Graham v. Corvallis & E. R. Co.Oregon Supreme Court · 1914
- Steckbauer v. LeykomWisconsin Supreme Court · 1907
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