
    * James H. Baker, for the use of Joseph Baugher, v. Joseph Thompson.
    Under the act of February 24, 1834, allowing a defendant in an action upon a specialty to set up a failure of consideration as a defense, to make the defense available, he must prove a total failure, or a total failure as to distinct parts of the contract.
    This is a writ of error directed to the court of common pleas of Harrison county.
    The original action was debt upon a sealed bill or note. The bill or note is specially declared upon in the first count in the declaration, and this is followed by the common counts. The note upon which the action is founded, was given by the defendant to the plaintiff, on February 14, 1845, for $280.88, payable twelve months after date.
    To this declaration the defendant pleaded :
    1. Non est factum as to the first, and nil debet as to the other counts.
    2. Entire failure of consideration.
    3. Failure of consideration as to part of the note, without averring what part.
    4. That the note was obtained by fraud, covin, and misrepresentation.
    The defendant also gave notice, that on the trial he would give in evidence certain facts which wore set forth in the notice, and that he would insist that the facts so stated, showed an entire failure of the consideration of the note.
    Issue was joined upon the first plea, and replications filed to the special pleas, upon which issues were also joined.
    The case was submitted to a jury in the court of common pleas, and a verdict returned for the defendant, upon which judgment was entered; to reverse which judgment this writ of error is prosecuted.
    *On the trial, the plaintiff excepted to the ruling of the court upon several points, as appears from a bill of exceptions, which is made part of the record, and is as follows:
    “ On the trial of this cause, the plaintiff having offered in evidence the writing obligatory described in his declaration, rested his cause. Thereupon the defendant offered and gave evidence, tending to prove that a contract was made between the plaintiff and defendant, whereby said plaintiff, being a millwright, agreed to repair the mill for the defendant at and for the customary cash rates of charge by measurement of such work as the repairs consisted of; that the repairs were worth, at the customary cash rates of charge by measurement, about $504; that the said plaintiff, immediately after the making of the repairs, and in the absence of the defendant, proceeded to measure said work, and some days afterward procured from the defendant his notes thereon, amounting in all to $850, including the note sued on; that the notes constituting the $850, loss the note sued on, had passed into the hands of other persons, and that the liability of the defendant thereon had become fixed. The plaintiff thereupon offered and gave evidence tending to prove that, after the making of the ropairs, the plaintiff and defendant met to settle, and the plaintiff stated to defendant that the said work by measurement, at customary cash prices, amounted to $1,150; that the defendant expressed the opinion that the bill was too high, and offered $750; the plaintiff again asserted it was not too high, and said he was willing to leave it to millwrights, and defendant said he thought they could settle it themselves, and they settled before they separated late at night. Defendant gave his notes to plaintiff for $850 for the said work of plaintiff, the note sued on in this case being one of said notes. And thereupon the plaintiff asked the court to charge the jury as to the law of this case, as follows:
    1. That the plaintiff is entitled to their verdict for the amount appearing due upon the writing obligatory offered *in evidenee, unless they find that the defendant, at the time of the making of said writing obligatory, was induced by fraudulent conduct on the part of the plaintiff to believe that he was making an instrument different from that which he actually did make, or unless they find that the consideration of said writing obligatory has failed in whole or in part.
    2. That the jury can not find that the consideration of said writing obligatory has entirely failed, without they find that the repairs constituting such consideration were of no value; nor that the consideration of said writing obligatory has failed in part, unless they find that a part of such repairs were of no value, and also find the price fixed by the parties upon such repairs, as they find of no value at the time of the giving of said notes.
    3. That if they find that said writing obligatory was given upon a compromise between said parties, as to the price and value of said repairs, the plaintiff is entitled to their verdict for tho amount appearing due upon said writing obligatory, irrespective of what may have been the real value of such repairs at customary cash prices.
    Upon which said first proposition the court charged the jury that if, when the parties met to ascertain what was due from the defendant to the plaintiff, the plaintiff deceived the defendant, and induced him to believe that the plaintiff was entitled to recover more than he was entitled to receive, the defendant is entitled to an abatement equal to the excess over the amount actually due.
    Upon said second proposition, the court refused to charge the law as stated in said proposition ; but the court did charge the jury that the law is otherwise than is stated in said proposition.
    Upon said third proposition, the court charged the jury that the law was as stated in said proposition, provided the parties met on terms of equality, and the plaintiff did not deceive the defendant by fraudulent representations.
    To which said several opinions of the court in refusing to *cbargo as aforesaid, as well as to the several instructions given by the court to the jury in their charge aforesaid, the plaintiff excepted, and prayed that his bill of exceptions in that behalf might be allowed, which is accordingly done. And upon his motion, the same is ordered to be made a part of the record in this case.
    The errors assigned and relie d upon are, that the court of common pleas erred in refusing to instruct the jury as required by the plaintiff, and in the instruction given, and also the general error.
    J. C. Hance and S. W. Bostwick, for plaintiff in error.
    Stanton & Peppard, for defendant.
    The case was submitted without argument.
   Hitchcock, J.

The request first made by plaintiff’s counsel for the instruction of the court to the jury, is based upon the assumption, that in order to avoid a contract for fraud, the fraud must be committed in the execution of the instrument witnessing the contract, and not in false and fraudulent representations previously made, which induced the party to execute it. The court of common pleas did not recognize this as a sound princijilo of law, and refused to charge as requested. Upon this question this court is divided in opinion, or at least have not been able to come to a definite conclusion, and it is therefore left undetermined. Nor are we prepared to say whether or not there was error in the charge actually given by the court in response to this request.

Counsel for plaintiff next requested the court to charge the jury that they could not find the consideration for said writing obligatory had entirely failed, unless they found that the repairs constituting such consideration, were of no *valuo; nor that the consideration had failed in part, unless they should find that a part of such repairs were of no value, and also find the pi'ice fixed upon such repairs as were of no value.

The court refused so to charge the jury, but did charge that such was not the law.

Was this erroneous?

The construction which has been put by this court upon the act of February 24, 1834, allowing a defendant to an action upon a written contract for tho payment of property or money, to plead or give notice of the entire or partial failure of consideration, is this : If' the defendant relies upon entire failure, ho must so make his proof. If he relies upon partial failure, he must, by his proofv show wherein this partial failure consists. It is not enough that he proves that the consideration is less valuable than it was supposed or estimated to be, when the contract was made. If tho law were to be so construed, it would bo of no use to fix any value upon the property or labor, or whatever might bo the consideration of the note, bond, or contract, for this value might be varied by the proofs, or by the verdict of a jury. Besides, if the vendee of an article might prove that the article was of less value than the contract price, the vendor ought to be permitted to prove that it was more valuable. Such was never the intention of the law. To avail himself of this law, a defendant must show that the consideration is entirely valueless, or if the defense is partial failure, then he must prove that part of the consideration which is claimed to have failed, was entirely valueless.

For instance, a note is given, the consideration of which is one thousand barrels of flour, at a stipulated price per barrel. No part of the flour is delivered. Hero would be an entire failure of consideration. If but five hundred barrels is delivered, there is a partial failure of consideration to this extent. But the maker of the note can not rely upon the defense, that there was a partial failure of consideration, and ^sustain the same by proof, that tho flour was of less value than the contract price.

If we are right in this construction, and it is the construction which this court has always given to the statute, it follows that the court of common pleas erred in not instructing upon this point as requested.

For this error the judgment is reversed, and the cause remanded for further proceedings.  