
    Eldridge vs. Mather.
    Under the plea of non-assumpsit a partial want or failure of consideration for the defendant’s undertaking cannot be given in evidence, where there is no notice that such evidence is intended to be given.
    
    This rule applied where the action was upon a promissory now. given for the sale and assignment to the defendant of two patent rights, one of which was void, and the other good, both rights being purchased at one time, at an aggregate price, without any separate valuation of either.
    Eldridge brought assumpsit in the supreme court, against Mather, upon a promissory note of five hundred dollars. Plea, the general issue. On the trial, before Gridley, circuit judge, in March, 1846, the defendant proved that the note was given for part of the consideration on the sale to him by the plaintiff of two patents for different machines. The sale of both patents was made at the same time, and for a price agreed on as the value of both, there being no separate valuation in the contract. The defendant then gave evidence tending to show that one of the patents was void on the ground that the invention was not new; but the evidence failed to impeach the other patent. The circuit judge instructed the jury to render a verdict for the plaintiff for the full amount of the note, unless they should find that both patents were void, and therefore that the consideration had entirely failed. This decision was placed upon the ground that a partial failure of the consideration was not available under the general issue, there being no notice that such defence was to be relied upon. The defendant excepted. The plaintiff had a verdict for the amount of the note, which the supreme court, sitting in the Fifth District, refused to set aside. The defendant then appealed to this court.
    
      T>. Buel, for appellant.
    
      J. B. Eldridge, for respondent.
    
      
      In People v. Niagara Common Pleas, 12 Wend. 246, Judge Sutherland says, “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 anything, but is merely in mitigation of damages.” This doctrine was reiterated by Chief Justice Savage, in Payne v. Cutler, 13 Wend. 606-7, where he says, that though a partial failure of consideration may be shown, in'an action upon a promissory note, between the original parties to it, yet, such defence is not admissible, under the general issue, without notice of special matter. See Schermerhom v. Van Allen, 18 Barb. 29. Dubois v. Hermanee, 56 N. T. 673. Raymond v. Rich^ ardson, i E. D. Smith 171.
    
   Shankland, J.,

delivered the opinion of the court. We are of opinion that, in this state, the rule is fully settled, and should be adhered to, that where the defendant is sued upon a contract, and' desires to set up in defence a partial want, or failure, of consideration, in mitigation of damages, he must give notice thereof. This principle was expressly adopted as early as 1814, by the supreme court of this state in the case of Runyan v. Nichols, (11 John. 609,) and was again impliedly sanctioned in 1816, in the case of Beecker & Beecker v. Vrooman, (13 id. 302.) The practice of giving notice in such cases was followed in Spalding v. Vandercook, (2 Wend. 431,) and the necessity of giving notice of such a defence is recognized in Burton v. Stewart, (3 id. 236 ;) Reab v. McAlister, (8 id. 109 ;) Barber v. Rose, (5 Hill, 76,) and some other cases which are reported. See also, Sedgwick on the Measure of Damages, 456.

After so long an adherence to a rule which is just in itself, and so well calculated to effectuate the object of all pleading, viz. to apprize the opposite party of the true grounds of dispute, it is too late to inquire as to the origin of the rule, or whether it is supported by English precedents.

The two patents formed one entire consideration for the note. Both were transferred to the defendant by one instrument, and for one sum. That one of the patents was of no value, does not establish a total want of consideration for the note. It is a defence to the amount the two patents assigned to the defendant are worth less than they would have been if both had been new and useful inventions. But being matter in mitigation of damages only, no real distinction exists between this and a case where but one article is sold, as the consideration for a promise. The case of Parish v. Stone, (14 Pick. Rep. 198,) cited by the appellant’s counsel, has no bearing upon the point in judgment in this cause. The point discussed and decided in that case was, that where a promissory note is given upon two distinct and independent considerations, one of which is valid, and the other not, the note will be apportioned, and the holder will recover to the extent of the valid consideration, and no further; and where the parts of the note are not respectively liquidated and definite, the question, what amount was founded on one consideration, and what on the other, is to be settled by the jury upon the evidence. No question was raised as to the necessity of a notice of the defence, in order to its admission in evidence. That case originated in the probate court, and the question was as to the character of the defence, rather than the manner in which it was to be introduced, so as to be made available. It is possible,-that where a note is given for two distinct, liquidated sums, consolidated, and the consideration is wholly wanting, or has wholly failed as to one, the court would permit the evidence to be given without notice, on the ground of a total want, or failure, of consideration, as to that part. But that is a different question from the one presented in this cause, and not necessary to be decided.

New trial denied.  