
    William F. Brewer vs. Albert Harris, et al.
    In a suit at law upon a promissory note, given in payment for a lot bought of the trustees of a town, it is competent for the defendant, in establishing a failure of consideration, to prove false representations by the trustees that induced the sale ; and also to prove that the lot of ground had become of no value, by the neglect of the trustees to make promised improvements.
    Fraud may be established al law as well as in equity, and may occasion either a total or partial failure of consideration, of a promissory note.
    Facts tending to establish fraud and failure of consideration, or either, may be given in evidence under the general issue, if the action be upon a promissory note,'or for a sum certain.
    Perhaps alitor, if the action be upon a quantum meruit, or generally for unliquida-ted damages.
    On appeal from, the Holmes circuit court.
    The appellees sued the appellant in the court below upon the following note:
    ' “ $229. On or before the first day of January, eighteen hundred and forty, I promise to pay either Albert Harris, William Hampton, William M’Demartin, S. D. Alexander, or C. C. Garner, trustees of the town of Legrange, or their successors, the supi of two hundred and twenty-nine dollars, value received, this 3d day of November, 1837. W. F. Beewee.”
    The defendant appeared and plead non assumpsit.
    
    On the trial, the defendant introduced Samuel D. Alexander, a witness, and 'offered to prove by him, that the note sued upon was given for a lot situate in Emery, a little town in Holmes county; that the lot was purchased by the defendant at public sale; that the plaintiffs, who were trustees of the town, sold the lot at public auction; that the defendant bid one of them off, and executed the note sued on in payment of it; that before the sale, the trustees advertised the time and place of sale, stuck up numerous printed copies of the advertisement at public places, in that part of the country; that the defendant was an agent for them in setting up the advertisements ; and that, among other things, these advertisements stated that the trustees would build a male and female academy at the town ; that these advertisements were made to enhance the value of the' property, and caused the lots to sell for an extravagant price; and the advertisements induced defendant to give an extravagant price for the lot purchased by him; that the trustees had never built the academies,-whereby the lot had become of no value.
    The plaintiffs objected to the introduction of this evidence, and it was all excluded by the court. The jury found for the plaintiff, and the defendant appealed.
    The error he assigns is : The exclusion of this testimony.
    
      Hays for appellants.
    The first matter assigned for error, is, that the plaintiff in error, by the exclusion of the testimony of said witness, prevented him from proving that the said note was obtained by fraud. Fraud vitiates every contract; and that a contract tainted with fraud cannot be enforced in a court of justice, 1 Leigh’s Nisi Prins, 187! '
    The second is, that by the exclusion of said testimony, the plaintiff in error was prevented from proving the entire failure of consideration, owing to the laches and fraud of'said defendants. Failure of consideration is a good ‘defence at law. 2 Kent Com. 472-75. The printed conditions'of'sales at aúction are the terms of the contract, and in all cases binding on both parties. Long on Sales, 234. ' ' - -
    Total or partial failure may be relieved against at law. 4 Howard’s Rep. 453. ’
    
      Brooke for appellees.
    The defence set up in this case, or rather attempted to be set up, was, that said note was given for a'lot of ground in said town of Emery, and that the plaintiffs, by advertisements and representations, had induced people to believe that' they would build a male and female academy in said town, and thereby enhance the value of the property therein ; that by ‘such advertisements and, representations the defendant, with others, was induced to give an extravagant price for lots; that no such male and female academy was built, according to representation ; that in consequence, the value of said lot had become much depreciated, and the consideration of the note wholly failed. See the evidence to this effect offered, as set forth in the bill of exceptions on page 5 of the record. The court below'refused to admit this testimony; whereupon a verdict was rendered for the plaintiffs, and the defendant sued out his appeal to this court.
    It is contended, on the part of the appellees, plaintiffs in the court below, that the defence offered to be set up, was not cognizable in a court of law, but proper only for a court of chancery. For this obvious reason, that a court of law cannot reach the merits of the whole case, and do adequate justice to all parties. Had the evidence in question been permitted to go to the jury, and they should have found for defendants, he would have retained the lot and been released from the whole demand. This would not be strict justice, yet it is the only way in which a court of common law could give relief. See 3 Marshall, 526. Millar v. Campbell, a case exactly in point. See also 1 Bibb, 500. 1 Littell, 178. 4 Howard, 453. 2 Wheat. 13. These cases are decisive of the question.
    
      William Thompson, on same side.
    In addition to Mr. Brooke’s brief, I would ask leave to suggest, that the evidence, proposed to be given by the defendants, instead of showing a failure of consideration, would show that the consideration, in fact, had not failed. The advertisement .that a male, and female academy would be built, they wished to prove was an inducement to defendants to purchase the lot. And they offered to prove they were not built according to the advertisement. This certainly does not show that the consideration, the lot, or title to the lot, the true consideration of the note, has failed.
   Mr. Justice.ThacheR

delivered the opinion of the court.

The appellant purchased a lot of land from the trustees of the town of Emery, in Holmes county, and gave his promissory note as security for the purchase money. On the trial, he tendered a witness to prove certain false representations made by the trustees-at the time of the sale of the lot mentioned, which trustees are the payees of the note sued upon, and also to show that the lot of land had become of no value in consequence of the neglect of the trustees to make their promised improvements in the town of Emery, which were the inducements to the purchase.

The testimony offered was designed by the defendant below to impeach the legality of the whole contract on the score of fraud, and to show a total failure of the consideration of the note.

It has been repeatedly decided that courts of law have concurrent jurisdiction with courts of equity upon questions of fraud. Fraud saps the foundation of every contract in which it exists, and, where it evinces that a plaintiff is not entitled to recover anything because of its existence, is properly cognizable by a court of law. It has also frequently been decided, that a failure of consideration, as well partial as total, may be introduced legitimately in evidence in an action at law upon a promissory note, because such defence may diminish the multiplicity and circuity of actions, which it is the policy of the law to discourage. These points have been so often settled that they demand no reference to authorities in their support.

The testimony rejected in the court below, as appears by the bill of exceptions, was to the effect that the lot of land, the consideration of the note, was of “no value,” and was so in consequence of the neglect of the payees of the note to perform certain things that constituted a part of the original contract of the sale of the land. If the testimony had been introduced, it might have had a tendency in the minds of a jury to have produced a result different from what appears by the record. The evidence was of a kind competent and admissible upon a trial of this description, and appropriate for the consideration of the jury. The defendant could reap no benefit in an action upon the covenants in the conveyance, if it contained any, because they go only to the title and not to the value of the land.

It was fairly a,question' for the jury to say, whether the note, in the case under our consideration, was procured upon the false representation of the payees, in which case it was utterly void, and the evidence was therefore a complete bar to the action j and it was also its province to inquire and find whether the consideration had totally and utterly failed, in which event the evidence would show that there never vwas any cause of action. The rejected testimony might have formed a link in a chain of evidence completely substantiating one or the other or both of these positions. Whatever was its force, the defendant had a right that a jury should weigh and decide upon it.

It is necessary, further, to examine this proposed evidence with reference to the state of pleadings in the action. The plea of non assumpsit was alone plead to the declaration. Under this plea, I conceive the defence might properly be tendered. Fraud in the .contract, or a total failure or want of consideration answers an action upon, a note, and such defence is legitimate under the general issue, because it reaches to the cause of action, and the validity of the contract. 11 J. R. 50. 15 J. R. 230. But a defence that fell short of either of these, I am led to believe, in a case like the one before us, would require and compel some special notice and advertisement to the opposite party of its nature and extent. Many authorities hold that a partial failure of consideration of a note is inadmissible under the general issue. 11 J. R. 547. 15 J. R. 230. 13 J. R. 56. Chitty lays down the rule, (1 Chitty PL 47,) which the authorities seem to support, that under the general issue of non as-sumpsit, any matter may be introduced in evidence, which manifests that, the plaintiff never had any cause of action, and, in general, rpost matters in discharge of the whole action. A plaintiff is supposed to be always ready to meet the objection that he has no subsisting, cause of action, but to defences in mitigation and diminution of his damages and demand, he may yell be uninformed and taken by surprise. It is a commonly received as well as just rule of pleading which requires that the plaintiff should be apprized of the facts upon which his defendant relies, so that he may be prepared to shape his answer, and encounter the opposition. 1 Chit. PI. 215. These remarks apply to cases where the plaintiff seeks to recover a sum agreed upon, and not necessarily where he proceeds upon a quantum meruit, or, generally, for unliquidated damages.

The judgment of the court below must be reversed, and a new trial awarded.  