
    Sides vs. Hilleary.
    Appeal from Montgomery county court. Assumpsit on a promissory note dated the 17th of February 1819, drawn by the defendant (now appellee,) in favour of the plaintiff (now appellant,) for 8125, Non, assumpsit and issue. At the trial the plaintiff offered in evidence the promissory note upon which the action was brought, admitted by the. defendant to have been executed by him, and delivered to the plaintiff. The defendant then proved, that the consideration of the note was a pair of mill-stones, which the defendant bought and received from the plaintiff, and pu,t up in his mill in the month of February 1819. That the, stones were bad; that one of them w'as composed of block, soft and badly cemented, and that many of the blocks of the other were also, soft and badly cemented, and were not worth the trouble of carrying from the plaintiff’s to the defendant’s mill. The stones were kept in the defendant’s mill from the month of February 1819, to the present time, and used with difficulty in grinding plaisfer. The defendant also proved by a competent witness, that he (the witness,) in the month of September 1819, a few days previous to the writing by the plaintiff of the first letter hereinafter set forth, called on the plaintiff at the defendant’s request, informed him that the stones were, bad., and desired him to repair them; and that the same application, was re:newed subsequent to the date of the last letter hereinafter stated. On the second application, theplaintiffinformed the witness thathe could not then comply with his request. The defendant further offered in evidence the following papers, proved to be the handwriting of the plaintiff. 1st. “Lisbon, 17th February 1819, Mr. Thomas Ililleary bo’t of Benjamin G. Sides, 1 pair 4 feet bur mill-stones 8225, Received at thé same time of Thomas Ilitteary §100 in cash, and his note of hand for §125, which, when paid, will be in full.
    
      If the plaintiff5, at the time oi'ta liíng a promissory note, knows that the article which forms its conside nation is defective, anti fraudulently «onceáis that defect from the defendant, he can swstimi no suit on the note.
    Whether the •plaintiff* had such icuotvledffe, and concealed it from the defendant, is a question ibr the iwy.
    
      
      Benjamin (?. Sides,”
    
    “I hereby warrant the above mill-stones to be good; and in case any of the blocks should not prove hard enough, I will go over to hia mill and put in others that will be sufficiently hard, at my own expense.
    
      Benjamin O. Sides.”
    
    2d. A letter dated the 24th of September 1819, from the plaintiff to the defendant. “When your plaister burs were made, the supply of blocks was but small — my jour1neyman who built the stones, forced in some contrary to my wishes, during my absence from the shop, although there were hard ones enough to have made them complete. If you will take the dimensions of such as are not sufficient, I will work them out, send them to your mill, and Come myself to put them in the deficient places, having a wish to give general satisfaction to all my customers. You can take the length and breadth at both ends, and note them down ott paper, to enable me to calculate the blocks Accordingly.” Sd. A letter from the plaintiff to the defendant, dated the 12th of January 1820. “Upon due consideration I find that your mill-stones could not he al - tered in a permanent manner unless they were taken apart The eye-blocks could not be put in safely without separating the whole work. This would require a great deal of labour. It would not be possible for me at this time of the year to do them in time for you. In fact, you ought to have sent me a written communication during last summer and fall, and they would certainly have been done, as I requested of you early in September last. You ^could not have taken me in a more unfavourable time of the year. The stones will certainly do to grind plaister with another season, or else they have got to be miserably bad. I would wish you to use them till about the, first of April next, and then send them to me; and if I don’t make them • good, I will give you the note and interest. I never was so much deceived in a pair of stones in my life. 1 knew three or four blocks were not hard enough, but had no idea that they were as bad as you represent them, and still have my doubts whether they are not. However that may be, I am resolved to make a firm substantial pair of burs out of them,.if you will extend your patience to the first of April. , The piece of a stone I showed ydu in my shop is of the hardest and closest quality of bur; I shall work on it every moderate day; and finish it off with the same quality which I intend for your ftinner. I can certainly make a first rate stone out of the .pair you have, , Were you to briiig the stones here now directly, it would not be possible to do them well and iii due timé, as my journeyman is sick, in couí-se I should have no help. I am resolved to do them myself altogether, without Entrusting any one with'thém, óf course my confidence will not .be betrayed.” Oil these facts the plaintiff prayed the instruction of the court to the jury, that he was entitled to recover. Which instruction the court [Ridgely and Kilgonr, A. J.j refused to give. The plaintiff excepted, and Appealed, the verdict and judgment being against him.
    The catíüe wás, argued before Buchanan, Eari/e; Martin; Dorsey, and Stephen, J. .
    Ridoui; for the appellant;
    contended; that the dué e'iecutiori of the note, bn which the action was brought; having been proved, the plaintiff’s fight to recover could not be defeated by proof of the inferior quality of the articles' foi* which the fióte was given. He referred to Greenleaf vs. Cook, 2 Wheat. 13, 16. Templer vs. M‘Lacklan, 5 Bos. & Pull. 136. Farnsworth vs. Ganard, 1 Campb. 40, (note.) Tye vs. Gwynne, 2 Campb. 346. Fisher vs. Samuda, 1 Campb. 193. Curtis vs. Hannay, 3 Esp. Rep. 82; and Grenaldi vs. White, 4 Esp. Rep.
    
    
      F. 8, Key, for the appellee,
    referred to 2 Esp. Dig. 40. (13.)
    
   Tltó opinion of the court was delivered by

Buchanan, J.'

If the plaintiff, at the time of taking the promissory note on which the suit is founded, knew that the mill-stories, which formed the consideration of the note, were defective; arid fraudulently concealed that defect from the defendant, the consideration wholly failed, and no suit could be sustained bn the note. Whetherthe plaintiff had or not a knowledge of the defect alleged, and concealed that knowledge from the defendant, was a question for the jury on the evidence, and the court could not 'properly have instructed them, as prayed, that the. plain« tiff was entitled to recover.

áu»sheet affirmed.  