
    Gamache, Respondent, v. Grimm et al., Appellants.
    1. Where a promissory note is given for the construction of a house, the fact that the house fell down in consequence of the use by plaintiff, the payee of the note, of bad material in its construction, and of the unslrillfulnes of the workmanship, may be set up by the maker of the note as a partial failure of consideration.
    
      ^Appeal from St. Louis Circuit Court.
    
    This was an action on a promissory note for $535. The consideration of the note was the erection of a house by plaintiff for defendant. The defendant set up in his anwer a failure of tbe consideration of tbe note, in tbis, that tbe house constructed by plaintiff for defendant, bad, from tbe use of inferior materials, and tbe unworkmanlike manner in which it bad been constructed, fallen down and become utterly worthless. Defendant also set up as a partial defence, that thirty-five dollars of tbe amount of tbe note was usuriously incorporated into tbe note as tbe interest for six months upon five hundred dollars, tbe true amount due.
    There was evidence tending to support tbe defence relied on by defendant. Tbe court, on its own motion, gave, among other instructions, tbe following : “6. If tbe bouse was constructed by tbe plaintiff in an unsubstantial and unworkmanlike manner, and of inferior or bad materials ; or if either the work or materials were not such as were contracted for; and in consequence thereof tbe bouse fell down- and became valueless to tbe defendants, as stated in tbe answer, tbe jury will find for tbe defendants ; otherwise they will find for tbe plaintiff.” To tbe giving of tbis instruction defendant excepted.
    Tbe following instruction, among others, was asked by defendant, and refused by tbe court: “2. Tbe court instructs tbe jury that if they believe from tbe evidence that tbe defendants employed tbe plaintiff to build them a brick dwelling bouse, beer saloon and dancing hall on their own land, in tbe town of Carondelet, for tbe sum of one thousand dollars, tbe half to be paid during tbe progress of tbe building, and tbe other half ($500) to be paid in six months after the completion of said building, and that in four months thereafter tbe bouse fell down in consequence of bad materials used, and tbe unskillful workmanship in tbe building of the same, and became partially worthless to tbe defendants, then the jury will deduct from tbe face of tbe note sued upon tbe amount of tbe damages tbe defendants sustained.” Tbe jury rendered a verdict in favor of plaintiff. Defendants appealed.
    Woods, for appellants.
    
      A. P. & P. B. Garesché, for respondent.
   Scott, Judge,

delivered the opinion of tlie court.

Under the answer set up by the defendants, it was competent for them to show in evidence a partial.failure of consideration. The instruction (numbered 6), given by the court, seems to inculcate the idea, that, unless there was a total failure of consideration, there must necessarily be a verdict for the plaintiff for the amount of his demand; and that the defendants were not entitled to any deduction by reason of any loss or injury they may have sustained in consequence of the unskillful manner in which the work was executed, unless it turned out that the work to them was totally worthless. In this we are of opinion, that the court erred. The pleadings and the evidence warranted the second instruction asked by the defendants, and it should have been given.

As the real sum due was $500, and the interest on it for six months, by the contract, was thirty-five dollars, it follows that twenty dollars was the excess of usurious interest, which, being deducted from the sum really due (five hundred dollars), would leave the sum of four hundred and eighty dollars to which the plaintiff would be entitled, were there no other considerations in the case.

The other judges concurring, the judgment will be reversed, and the cause remanded.  