
    Sawyer and others vs. Chambers and others.
    In an action upon a promissory note, by the payees against indorsers, the court refused to allow the defendants to show that the note was given for goods to be delivered, and that such goods had never been delivered, Held erroneous.
    The rule that exceptions to a charge must be specific does not apply to a case where the judge excludes the defense on the opening of the defendant’s counsel.
    Where the judge excludes the whole defense, one exception to the decision is good.
    ACTION upon a promissory note, against the indorsers. Upon the trial the plaintiff proved the execution of the note and the interest, and rested. The defendants opened their defense, and being requested by the plaintiffs’ counsel, stated that they intended to prove that the note in suit was indorsed by the defendants for the Grutta Percha Company themselves, upon the condition that the plaintiffs would perform and carry out an agreement made between them and the company to deliver to the company cotton duck, at a certain price, for which the company was to give satisfactory paper. That the plaintiffs did not perform their agreement, and thereby prevented the company from paying the note. That the contract was the sole consideration for the note in suit. That the note was given for cotton duck so sold and to be sold to the company; that only duck to the value of $3195.19 had been delivered, and that the company had paid the plaintiffs, on account of the duck so delivered, a sum of money exceeding the contract price thereof.
    The court refused to permit the defendants to prove such matters, and directed a verdict for the plaintiffs, to which ruling the defendants excepted.
    
      Mr. Abbott, for the appellants.
    
      Mr. Harrington, for the respondents.
   By the Court,

Ingraham, J.

The defense set up in this case must be considered as sufficiently alleged in the answer, as the answer was amended by the court to embrace the facts so stated,

Whether this is to be considered an offer to show a total or partial failure of consideration between the plaintiffs and the makers, is immaterial. Between the original parties such a defense is admissible. The offer was to show that the whole consideration of the note, or the greater part of it, had failed; that the note was given on account of the goods, which the plaintiffs had agreed to sell to the company ; that only a small portion of such goods had been delivered, and that the amounts so delivered had been actually paid for. I am at a loss to see any ground on which this evidence could be excluded.

Surely an accommodation indorser is in no worse condition than the maker. He has a right to any defense which the maker could avail himself of. If the makers had been sued upon the note, they could have shown that the note was given on account of goods to be delivered, and that such goods had never been received. The plaintiffs, under such proof, would have no claim against the defendants, as the note would be without consideration. So long as the courts permit the consideration of a note to be inquired into under any circumstances, the facts presented in the defendants’ offer must come within such a rule. The plaintiffs have no right to recover on this note, from any of. the parties, any thing more than enough to indemnify them for the duck sold or thereafter delivered to the company, and the defense that no such amount of duck had ever been delivered should not have been excluded.

The plaintiffs’ counsel has urged to us that a partial failure of consideration can not be given in evidence to defeat a recovery against a note. (17 N. Y. Rep. 101. Id. 230, and other cases.) Both of these cases were on notes held by bona Jide holders, to whom the same had been transferred, after the contract was made, and who had no knowledge thereof.

[New York General Term,

November 7, 1864.

I know of no such rule as applicable to the original parties, unless the strict rule is applied which prevents the admission of paroi evidence to vary written contracts. This rule has not been applied to proof of the consideration of a promissory note.

Another objection of the plaintiffs is that the exception is too general, and although part of his offer was good, .still he excepted to the conclusion of the court upon the whole defense, instead of making specific exceptions. All the cases cited by the plaintiff in support of this point were cases of exceptions to the whole of the judge’s charge. But that is not this case. The defendant opened his defense to the jury, and the judge ruled that he had no defense, to which the defendant excepted. There was but one question, viz. whether in the matters stated the defendant had stated a defense. If he had, the judge erred in excluding it. It was not necessary for the defendants’ counsel to repeat the statements again and to take a separate ruling on each. The probability is that, separately, each of the propositions might have been insufficient, and that it was only by grouping them together that the defense could .be made out. ■ The purpose for 'whxch the note was given, the non-payment of the consideration either in property or money, the failure to perform by delivering the goods, and knowledge on the part of the 'holders, .were all necessary to be shown to make out the defense^ and all the matters offered were necessary for that purpose. But whether so or not, the rule relied on by the ^plaintiffs’ counsel does not apply to a case where the judge excludes the defense on the opening of the counsel. Then the question is, whether in what is offered there is any defense ; and if the judge excludes the whole defense, one exception thereto is good.

Judgment should be reversed and a new trial ordered, costs to abide the event.

Ingraham, Geo. G. Barnard and Sutherland, Justices.]  