
    Saxton and Hutcheson against Johnson.
    NEW YORK,
    Oct. 1813.
    Where the declaration)113 defendant the made his cersoi'y not^'by raised to Ppay the plaintiff neatstocki&c. “fwvahterereason whereth k°¿t And duced at Pth°e contain d the6 words value received .* it was held that statóMndthe wererímeréiy descriptive of and not an a-therefore,and’ there was a variance between the contract declared on and that given in evidence.
    Such a note not being within the statute, but a special contract, and no consideration being stated on the face of it, cannot be demíe mufer1" the money «nnma
    THIS was an action of assumpsit. The declaration contained *lv0 counts; the first on a promissory note in the usual form; and °thei' for money paid, money lent, and money had and received to the use of the plaintiffs. In the first count, after stating the making of a certain note, &c. it was alleged that the defendant “ thereby promised to pay to the said plaintiffs jointly, 215 dolJars, in neat stock, at the appraisal of men, to be delivered at the village of Norwich, two years and six months after the date here°fj for the express purpose of meeting the payment of a sum of money due on a note signed by the plaintiffs and Benjamin ^mons, payable to Amasa Norton, and likewise 40 dollars in one-year and six months from the date hereof, for the same purpose,. whh interest, for value received; by reason whereof the defendant became liable to pay,” &c. Plea non assumpsit, with notice of 1 J x payment.
    The cause was tried at the Broome circuit, in May, 1810, be-f°re Mr. justice Spencer. In support of the first count the plaintiffs offered in evidence a note made by the defendant, the 14th December, 1809, which was as above .stated, except, that it did Bot contain the words “ value received.” The defendant’s counsel objected to the admission of the note in evidence under the first count, on the ground of the variance between it and the one stated in the declaration. The plaintiffs offered to prove the true consideration of1 the note, but this wras refused by the judge. The plaintiffs’ counsel then offered to give the note in evidence under the money count, and to prove that the defendant had paid the first instalment, and had, before the commencement of the suit, told the plaintiffs he would pay the residue on a certain day. This evidence was objected to, and the judge being of opinion that the note could not be given in evidence under these circumstances, in support of the money count, nonsuited the plaintiffs, with liberty to move to set aside the nonsuit, and for a new trial. '
    
    
      Collyer, for the plaintiffs,
    contended that the words “ for value received,” in the declaration, were not words descriptive of the contract, but an averment of the fact, and might, therefore, be proved, at the trial. In Wilson v. Codman,
      
       the declaration stated that the note was assigned, for value received, and Lee, arguendo, contended that the plaintiff ought to have proved that the note was assigned for value received. Marshall, Ch. J. considered it as an immaterial averment, and so not necessary to be proved. He did not consider these words as descriptive merely of the contract, but as an averment of a fact dehors the writing. This, then, being an averment, the plaintiffs had a right to prove if, and having offered to prove every material allegation, they ought not to have been nonsuited.
    But supposing that the consideration ought to have been set forth in the declaration in this case, yet the omission can only be taken advantage of on demurrer, or in arrest of judgment.
    Again, the note produced does, on the face of it, show a sufficient consideration; and accompanied with the evidence offered, it ought to have been received under the money count.
      a
    
    
      Sudam, contra,
    insisted that this case could not be distinguished from that of Jerome v. Whitney, in which the court said that a ■ note to pay 60 dollars in neat cattle, was not within the statute, and the consideration must be set forth and proved. The note in that case did contain the words “ value received,” which the court regarded as prima facie evidence of a consideration; but as the plaintiff in that case had set forth a particular consideration, the note, containing only this general acknowledgment of value received, could not be" given in evidence to support the count.
    If, then, this contract could not be given in evidence under a special count on the note, it could not be given in evidence to support a general count. And if the plaintiffs cannot recover under the money count, the offer of the defendant made before the note was due, to pay the residue at the day, could not vary the case.
    The declaration in this case having stated the fact of value received, the defendant could not demur to it.
    
      
      
         3 Cranch' Rep. 193.
      
    
    
      
       2 Johns. Rep. 235— 240. 1 East, 58. n.
    
    
      
      
         7 Johns. Rep. 320.
    
   Per Curiam.

The words for value received, in the first count in the declaration, were used and intended for a description of the note declared on; and not as an averment inserted by the pleader. The precedents of declarations on promissory notes are all in that way; and no counsel on the part of thé defendant would have supposed that these words were inserted as an averment of value ; and if he had demurred in consequence of a defective averment of the consideration, the court, no doubt, would have considered the words as part of the note. There was, thei,, a variance between the instrument declared on, and the one given in evidence, and the plaintitTh, at the trial, failed in the requisite evidence in support of their first count.

The next question is, whether the note was admissible in evidence under the money count.

If the note had contained, on the face of it, an admission of a consideration, or value received, it might, perhaps, have been admitted, but it had none; and as it was not a note within the statute, but a special contract, it required a consideration to be stated or averred. To give the note in evidence, without any consideration averred, or any consideration appearing on the face of it, would be taking the defendant by surprise, without giving him due . opportunity to contest the consideration, which might have been Set up at the trial.

The motion to set aside the nonsuit' is denied.

Motion denied.  