
    Williams, Appellant, v. Harris, Ferguson & Co.
    The words, without plea or offset, in a promissory note, are not an essential part of the contract, and do not preclude defence.
    Where a defendant admits a portion of the sum sued for to be due, it is not necessary to make a formal tender in his plea of the amount. The plaintiff may take his judgment for the sum admitted by nil dicit.
    
    Where the defendant pleaded the general issue, failure of consideration, and in a further plea, admitted part of the sum sued for: held, that the latter plea taken in connection with the others, is bad.
    Where a special warranty is relied on, it is not necessary that the plea should show that the note which is the foundation of the' suit, was given in consideration of the bill of sale, or warranty; nor that the warranty was executed previous to the making of the note.
    If there is an express warranty, a charge of fraud, or knowledge of unsoundness, is not necessary to the defence.
    THIS case came up on an appeal from the circuit court of Wilkinson county. The appellees instituted their suit on a promissory note, given by the appellant Williams, to Famish, endorsed by Famish to Stamps, and by him to Harris, Ferguson & Co., payable “ without plea or offset.”
    The defendants pleaded the general issue, and three special pleas. The first special plea alleged, that the note sued on was given as the balance of the consideration for ten negroes which defendant had purchased of one Joel White for 3580 dollars; which negroes, White,by his bill of sale in writing,under seal, &c., executed on the 18 th of April, 1833, warranted to be sound in mind and body. That one of said slaves was unsound at the time of sale, and of no value, though valued in said sale at 1100 dollars — that Famish and Stamps endorsed said note as security, and that no consideration passed, but that said note was traded by White to the plaintiffs with full notice of the consideration, and of the warranty.
    The second special plea averred plaintiffs’ actio non, any further than to recover 700 dollars, part of said note, and failure of consideration as to the residue.
    The third special plea was a general averment of a total failure of consideration.
    The plaintiffs below joined issue on the plea of non as-mmpsit} and demurred to the special pleas for the following reasons:
    1. The defendant is estopped by the note set forth by them from filing any plea, offset, or defence.
    2. Said third plea should have tendered the 700 dollars admitted to be due.
    
      3. Said third plea does not answer the whole declaration, and shows matter proper under the general issue. „
    4. Said second and third pleas do not show that said note was given in consideration of the bill of suit and warranty, or either of them,
    5. Said warranty named in said pleas, is not averred to have been made before the execution of said note.
    6. No failure of title is averred.
    7; Said fourth plea does not show how the consideration failed.
    8. Said fourth plea has neither certainty nor precision, and tenders a mixed issue.
    9. Said fourth plea admits of no reply by way of confession and avoidance.
    10. Said second and third pleas allege no failure of consideration by reason of fraud.
    11. Said second and-third pleas do not aver any knowledge in plaintiffs of any defect in said negroes.
    The demurrer to the special pleas was sustained by the co.urt below, and there was verdict and judgment for plaintiffs on the plea of the general issue. From this judgment, the defendant below appealed.
    Huston, for appellant.
    The correctness of the judgment sustaining the demurrer is brought in question in this court, and presents the only point upon which error is assigned.
    There can be no doubt of the right which a defendant has to impeach the consideration of a note by a special plea under , ordinary circumstances; and the question in this caáe, arises from the peculiar phraseology of the note sued on.
    The note sued on in this case promises to pay the amount therein specified without plea or offset: and it is contended that, the defendant has thereby debarred himself from making any-defence to the suit.
    The defence set up is failure of consideration. This is not a plea of offset. And the only question is, can a party, to a contract legally bind himself not to make any defence, when sued upon a contract? I think not. Suppose the debt -in this case had been released, will it be pretended that the defendant' could not have pleaded such release, or that he would have been-estopped? At most, such a clause in .a note can only extend to - offsets, or other defence existing at the time of making the contract, and not arising out of the very contract itself.
    Is it not absurd to say, that a party to a contract can bind himself so as not to be able to avail himself of a failure of consideration? This would amount to nudum pactum.
    
    It is said the defendant has by his contract promised not to make- any defence. But it requires a consideration to support even that promise; and in this case the failure of consideration goes as much to the promise not to defend by plea or offset, as it does to the promise not to pay money.
    Boyd, for the appellees.
    The fourth plea of defendant, the third special plea, is so fatally defective, that it is deemed unnecessary to do more than refer to the assignment of the demurrer as fully warranting the judgment of the court below in reference to it. The first assignment of the demurrer is believed to furnish a complete answer to' all the special pleas in the case. If it were taken in law, it shows that the defendant was precluded by his own express contract, set forth in •the note sued on, from filing any plea or offset to the action. Our-statutes have placed the endorsees of negotiable notes, &c. on the same footing with the payees, in regard to every species of defence, which existed in favor of the maker of such notes, previous to notice of such assignment. Rev. Code, 464, sec. 9. This innovation upon the general principles of law, which would not permit an endorsee to be affected by dealings between the original parties to negotiable paper, except where it had been unfairly obtained, or disavowed, or negotiated after due, Johns. Cases, 170, is in favor of the party originally bound and first liable, and of course, like any other privilege or advantage conferred upon him by legislation, may be waived or refused by him. 4 Mass. Rep. 251-2; 1 Chan. Dig. 47-8.
    ,? Such a waiver is contained in the note sued on. The maker > is precluded by his express contract even as between himself and ¡ the payee, from filing any plea whatever which admits his contract. A plea of fraud would violate the contract, but no defence which admits the contract, and attempts to avoid it can be admissible. \ The stipulation amounts to this, that the party who gives such a I note on the purchase of merchandise or other property, will rely ) upon his own judgment, or to his bargain that he has examined ' for himself, and is willing to act at his own risk; he asks nothing from his vendor, and in fact releases and acquits him of all future demands, which otherwise might have grown out of their dealings. Although he may afterwards deny the making of such a contract by showiug such a fraud, in obtaining it, as would render it void, and so no contract, yet no principle of law or reason will permit him by any species of pleading to refer to any facts, existing at the time of making the contract, or growing out of the transaction, for the purpose of altering or varying, in any way, the obligatory force upon him. Pie cannot appear on the record in the inconsistent attitude of admitting that he has no defence, and yet setting up a defence. His own admissions are the best answer to his plea.
    I consider this note, then, restored by the act of the maker to the same situation as it held prior to the existence of' the statute referred to, and that even if the payee had been the defendant below, the defendant would have been precluded from filing his special pleas. The case is stronger in favor of the defendants below who sued as endorsees.
    The second and third pleas are defective in substance, even if admissible as a matter of law. There is one error common to them both. They aver that the note sued on was given on “ the balance of the consideration for ten negroes, which defendant had purchased, &c. &c.,” and these negroes and their purchase are the sole and only consideration set forth. In such case the only defence which the pleas could properly set forth, would be either a partial or total failure of consideration, by reason of the fraud of the vendor of the negroes, or a warranty and breach of such warranty connecting these defendants with the vendor. No failure of consideration by reason of any fraud is pretended. But a warranty is relied on. If such a warranty as is set forth really existed, and the breach complained of were true, these plaintiffs could not be affected by it; because there is a complete want of proper averments connecting them with the face of the note. The only scienter charged on them is of the consideration of the note, but not of its failure. But the warranty as it is pleaded, is not shown to have had any connection whatever with the note sued on, as will appear by a-reference to the fourth, fifth and sixth assignments of the demurrer, and the following authorities: Walker’s Rep. 4S8-9; Chitty’s PI. 296; Com. Dig. Action for Deceit F 2, A 11; 2 Chitty’s PI. 100, 277; 3 Black. Comm. 166.
    These cases show, first, that where one consideration is averred in pleading, no other can be admitted or shown. Secondly, that when a warranty is relied on, it must be directly and positively stated to have been the consideration of the sale, and made at or before the sale. The averment must be distinct, “ by the warranty he sold, or by warranting he sold,” or in the language of Comyn, warrantizando vendidit. Nothing will be presumed in favor of the pleader, or his averments. It is not sufficient in such a case to say, that the vendor sold and warranted. ■
    The third plea contains a further error as indicated in the second and third assignments of the demurrer. 2 Chitty’s PI. 433-4. This objection is as to the form of pleading. The plea •does not answer the whole declaration. It neither admits nor denies the 700 dollars named in it. It merely says that plaintiffs ought not to receive beyond that amount,” and that the consideration, except as to the 700 dollars, has failed. Before such a-plea could properly be filed, we should have had a tender for the 700 dollars which defendant did not mean to dispute, or the money should have been brought into court. Otherwise, on a trial of the issue on this plea, if the jury had found a failure of consideration, or set forth, that being the only matter for them to try, judgment would have been for defendant, and the plaintiffs would have had no means of obtaining the 700 dollars named in the commencement of the jfiea. The court could not divide their judgment, and give half for the defendant and half for the plaintiffs. Hence, whenever a defendant does not mean to contest part of a claim, it will not do for him to say nothing about such portion, but he must expressly give a judgment for the amount he intends to admit on bringing it into court, so that when the issue is reached, there may be a full judgment on the whole case for one party or the other. The judgment of the court below, it is believed, for the reasons suggested, was correct and should be affirmed.
   . Mr. Chief Justice Shabkey

delivered the opinion of the court.

The appellees instituted their suit on a promissory note given by the appellant, for 1100 dollars, payable in bank, which was endorsed to the appellees. The note is described as a promise to pay “ without plea or offset/’ and these words form a ground of objection to the pleas. There were four pleas put in. The first is the general issue, and the others are pleas of failure of the consideration. The plaintiffs demurred to the last three pleas, and assigned various causes, which were sustain ed; and a verdict being taken on the issue, the case is brought up by appeal.

The correctness of the judgment of the court on the demurrer presents the only question in the case.

The first cause of demurrer is, that the defendant is precluded from making any offset or defence by the note on which the suit is founded. If this objection be good, a demurrer would reach the first plea as well as the others,- but issue is taken to that, and the party might have availed himself of his defence under it. He has chosen, however, to rest his case on the goodness of his special pleas, and jeopard the privilege which he had under the general issue, and thus necessarily raise a suspicion as to the truth of his defence. But I cannot consider this cause of demurrer good, for several reasons. Although the note is described in the declaration “without plea or offset,” yet these words cannot be construed to form an essential part of the contract, and, as introduced in the declaration, must be considered as mere description which was unnecessary, and which may or may not be correct, without prejudice to the note as a matter of evidence. A promissory note must be always positive and absolute in its character, and I do not think the mere addition of these words can make it more so. It, moreover, always implies a consideration, without which it is not binding, and the defence set up in this instance, is want of consideration, which, if true, destroys the binding force of the note, and of course, would also extend to any words, which were super-added to insure payment, and would also reach, on the same principle, any independent contract, instituted either on the face of the note, or made separately. The law will not permit the enforcement of a contract made in fraud, it being void, and all agreements in relation to it, having no other foundation, must be also void. If an individual, by inserting words of this kind in .the contract, can deprive a party of his defence, and bind him to pay at all events, that branch of the law which vitiates contracts, founded in fraud, want of consideration, or inability in the contracting party, has long been a subject of unnecessary investigation, with a view to the establishment of a system for the protection of the honest and unwary, and need not longer be' retained as a part of our jurisprudence, as those who are truly honest, will not bring it into practice, and those who are really dishonest, can so easily evade it. If the words “ without plea or offset” formed part of the contract, the defence set up would avoid the whole of it; and if they formed a separate agreement, it was evidently based upon the consideration, for which the note was given, which, being swept from under it, must leave it without foundation.

The second cause of demurrer goes to the third plea only. The plea is “ actio non, any further than to recover the sum of seven hundred dollars, part of said note, in said declaration mentioned;” and it then goes on to set up a failure of consideration to the bal-anee. The cause of demurrer is, that it should have made a tender of the sum admitted to be due, but I do not think this is good, if the defendant could swear as to an averment of all the entire sum claimed, and plead to' part, as he might undoubtedly, do to-different counts, or different sums claimed, as will be seen in noticing the third cause of demurrer to the same plea, which is that it contains no answer to the whole declaration, and shows matter proper only under the general issue.

The rule of law is, that the plea must be an answer to the whole declaration or count, or all that it assumes to answer and no more; and if it purports to answer only part, as it may do, if must answer that part and no more; and thé plaintiff may take his. judgment for the part unanswered, as by nil dicit. 1 Chit. Pl. 509;, I Lord Raymond, 716. The plea is not m strict technical form, it is true; but I can see no reason why the mode adopted is not equally as good. In strict pursuance of precedent, it should have been in form something like this: “ And the said defendant, as to all the said sum of money in the declaration mentioned, except as to the sum of seven hundred dollars, says aclio non, &c.,” and it, is pleaded “ actio non, any further than the sum of seven hundred dollars,” which to me seems equally as good as the form usually adopted. Actio non, it is true, goes, to the whole cause of action, but the exception and admission directly connected with it, as it is in the plea, must be understood as limiting the defence to the part, excepted and not admitted.

If this plea, then, stood alone, it would present no question but on its own merits; and, although it is a general rule, that several distinct pleas in bar under our statute will stand independent of one another, and be considered as if pleaded alone; yet there is an exception to the rule, which, I think, is presented by this plea. The plaintiff could not have taken his judgment for the part confessed, being estopped by the general issue. A plea of tender cannot be pleaded with the general issue to the whole declaration? because the tender confesses an amount due; and this plea seems to fall within the same principle. It evidently- confesses a certain amount due, and is, therefore, equally incompatible with the other pleas. 4 Tenn. Rep. 194; Gould’s Pl. 435; 1 Chit. Pl. 541. Taking this plea, then, in connection with the other pleas, it is bad, and could only be reached by demurrer.

The fourth cause of demurrer is, that the second and third pleas do not show that the note sued on was given in consideration of the bill of sale and warranty, or either of them; and fifth, said warranty, named in said second and third pleas, is not averred to have been made before the execution of said note; nor" to have been made in part or in whole consideration of said note, nor any consideration whatever. These causes of demurrer may be considered together, the points raised being substantially the same.

The third plea has been already disposed of, and it remains •only to apply them to the second. I do not think it necessary that the plea should show that the. note was given in' consideration of the bill of sale or warranty, nor that the warranty should have been executed before the note. The warranty was not, in truth, the consideration for the note. The plea states that it was given for negroes, which the seller warranted by bill of sale. The contract is not described with that certainty which would be required in a declaration; but a plea in bar does not require the same certainty, that would be necessary in a declaration. It was an executed consideration, and therefore required less certainty in the description, even in the declaration. 1 Chitty, 296. It certainly was not necessary that the bill of sale and warranty should have been executed before the note. If done subsequently as a part of the same contract, it would be equally binding. 10 Johns. Rep. 243. And if it were necessary that such a particular order should have been observed, in consummating the contract, it cannot be necessary that it should be stated in pleading. I think it is stated with sufficient certainty, that the warranty was a part of .the contract of sale, founded on the consideration which passed.

The plea commences by a general averment, that the consideration of the note had failed; and goes on to specify that it was given for the purchase of certain negroes, which the seller, by bill of sale, warranted to be sound, but which in fact, were unsound, specifying the disease, and that it existed at the time of sale. The date of the bill of sale was also given, which ^hows that it was executed on the day the note was. I do not think the plea bad for this cause of demurrer.

The sixth cause is, that the sale of negroes is the only consideration alleged, and that no failure of title is set out. The defendant did not complain of want of title, but a want of soundness, which he had a right to do, if his warranty would reach it.

The seventh, eighth and ninth causes of demurrer to the fourth plea, which are failure of consideration generally, and are too general in their terms to give any idea of the defence, or nature of the failure, are therefore bad.

The tenth cause is, that the second plea charges no fraud in the sale of the negroes. If there is an express warranty, no fraud need be charged to make a good defence. And the last cause is, that the second plea does not aver a knowledge of unsoundness or defect on the part of the plaintiffs. It is immaterial whether the seller had any knowledge of the unsoundness, if he gave a general warranty. That would make him responsible, whether he knew it or not. Nor was it necessary to aver that the plaintiffs knew the negroes to be unsound. They hold the note as endorsees, and any defence that would have been available against the payee, in consequence of failure of consideration, must also extend to them.

The demurrer should have been overruled as to the second plea. The judgment must be reversed, a venire de novo awarded, with leave to reply.  