JAN. TERM, 1856. KELLER 1 7. VONVELL. 44] *KELLER for. This purchase, appellee accord-V. ingly made for appellant, and fraudulently represented that he had given, VOWELL. or paid for said improvement, the sum A plea, that the note sued on was procured by of.$220, or 3170 over and above the the covin and fraud of the plaintiff, without st-amount, $50, advanced by the appel-ting out the facts constituting the fraud, is bad on lant, to contribute to the payment, demurrer. The defense of art i a I want or failure of consid-when, in truth and in fact, the appel-eration, may be interposed to a note or bond, when lee only gave $120 for said improve-the facts, constituting the defense, are sin cially ment, or $70 more than the appellant pleaded, or set out by way of recoupment, or as a bar to so much of the demand as may be thus an-had advanced. The plea further aver-swered. ( Wheat, use d:e. v. Dotson, 12 Ark. 708.) ring, that, relying upon the false and The defendant employed the plaintiff to purchase fraudulent representations, he gave his an improvement upon the public land ; the plaint-note, the one sued on, to the appellee iff made the purchase, but fraudulently represented for the said sum of $170, when it should to the defendant, that he gave for the improvement, $100 more than its actual cost ; the defehdant gave not have been for but $70, being $100 his note, the one sued on, to the plaintiff, for a more than it should have been, for balance due him on the purchase, including the which there was no consideration what-$100 so falsely represented to have been g veil for the improvement : H eld, That there was a partial ever. want of consideration to that amount, of which 3. This plea is, in effect, like the the defendant could take advantage by plea. second one, which we have stated. Appeal from Poinsett Circuit Court. The three pleas were regularly sworn to by the appellant. ON. GEORGE W. BEAZLEY, The appellee demurred to all three of H Circuit Judge. these pleas, setting down as causes: Cummins, for the appellant. To 1st plea: That it did not set out the facts constituting the fraud. W. Byers, for the appellee. To 2d and 3d pleas: 1st. That they HANLY, J. This was a petition in only went to part of the consideration. debt, on a promissory note, for the sum 2d. That they set up matter cog-of $170, brought by the appellee against nizable iu a court of equity. the appellant, in the Poinsett circuit 3d. Because the pleas do not dis-court, to the October term, 1855. close any legal duty, on the part of the The appellant, at the return term of appellee, to represent the fact in re-the writ, appeared and craved oyer of gard to the true price paid for the im-the note, and interposed three pleas in provement. bar of the action, to-wit : The demurrer was sustained to all 1. That the note was procured by three of the pleas: to which appellant the covin and fraud of the appellee, excepted, and refused to plead over,. and not otherwise. and final judgment was rendered for 2. That as to $100, part of the note, the appellee: from which appellant ap-4461 the appellant employed *appel-pealed. lee to purchase an improvement The questions before this court upon on the public lands, from , one the transcript, are, as to the sufficiency Rickles, on his, appellant's ac-of the three pleas, above stated, which count, appellant giving him at the we will proceed to consider and de-time 850, to be applied by him to termine in their order. the payment for the improvement, and *1. It is admitted by the [4447 was to pay whatever additional counsel for the appellant; that this plea amount appellee had to pay there-is clearly bad, and that . the demurrer
KELLER V. VOWELL. VOL. 17 was properly sustained thereto, by the duction equally regular, that when no-court below. We do not, therefore, tice of the defense was given, either by propose to consider the plea further. pleading or by other effectual proceed-See irynson et al. v. Dunn, 5 Ark. Bep. ing,. neither surprise nor any other in-395. vasion of *the rights of the par- [*448 2. and 3. By reference to our state- ties could occur or be reasonably ap-ment of these pleas, it will be ob- prehended. But, however the rule served, that they do not profess to an- laid down by the English courts should swer the declaration, except as to $100, be understood, it has been repeatedly for which they allege there was no con- decided by learned and able judges, in sideration superinducing the execution our own country, when acting, too, of the note to that amount, stating in not in virtue of a statutory license or a very clear and succinct form, the cir- provision, but upon principles of jus-cumstances under which the note in tice and convenience, and with the question was made, and the facts show- view of preventing litigation and ex-ing and indicating the want of consid- pense, that, where fraud has occurred eration as to the amount of $100, em- in obtaining, or in the performance of braced in the note. The gravamen of contracts, or where there has been a the pleas is the fraud of the appellee, failure of consideration, total or par-by which the appellant was induced to tial, or a breach of warranty, give to give to him his note for $100 fraudulent or otherwise, all or any of more than he owed. The pleas assert, these facts may be relied on in defense that the appellee assured the appellant. of a party, when sued upon such con-that he had paid Rickles $220 for the tract: and that he shall not be driven improvement bought on account of the to assert them, either for protection, or appellant ; when, in truth and in fact, as a ground for compensation in a cross he only gave Rickles $120 for the im- action." provement, of which amount he had The same principles promulgated paid appellee $50 in cash, at the time and established in this State, by this he engaged him to make the purchase, court, in the case of Wheat, use &e. v. and averring that the note given shou'd Dotson, have been not only acquiesced have only been for $70, instead of $170, in,. but reiterated by repeated adjudica-the amount of the note sued on. tions since the decision in that case. In Wheat, use &e. v. Dotson, 12 Ark. So that it may be regarded now, as the 708, this court, by Scott, Judge (quot- settled and permanent law of this ing from Withers v. Green, 9 How. U. State, that the defense of partial want, S. Rep. 226), said : "It would seem, or failure of consideration, may be in-then, to be fairly deducible from the terposed to a note or bond, when the reasoning of the English judges, from facts constituting the defense, are spe-the case of Barton v. Butler, in 7 East, cially pleaded or set out by way of re-decided in 1806, to that of Poulton v. coupment, or as a bar to so much of the Lattimore, 9 Barn. & Gres., ruled in demand as may '3e thus answered. 1829, that this defense (alluding to the There can be no question or doubt of defense of a partial failure or want of the propriety and expediency of this consideration by recoypment), would, rule, saying nothing of its subserviency by those judges themselves, be deemed to "common justice, common consent, permissible, whenever it could be al- and common convenience." leged without danger of surprise, and It seems to be conceded by the ap-consistently with safety to the rightsof pellee, that the facts set up in the 2d the parties : and it appears to be a de- and 3d pleas of the appellant, would be
JAN. TERM, 1856. sufficient to sustain an action, on the part of the appellant, against the ap-pellee, or else entitle him to relief in a court of equity. The admission of this is conclusive as to the sufficiency of the pleas, iu accordance with the principles determined in the cases to which we have before referred : for the reason of the rule, in allowing the defenve of a partial failure of the consideration of a note or bond, is to avoid and prevent the necessity of a circuity of actions, and the inconvenience and expense incident to mul-4491 a tiplied litigation. In other words, it is the assumption, on the part of the courts of law, of special equity jurisdiction, for those reasons which we have just mentioned. Viewing the facts set up in the two pleas we are considering, as a good defense to the action to the note, to the amount of one hundred dollars, the court below should have overruled the demurrer as to those pleas. Not having done so, the judgment of the Poin-sett circuit court is reversed, and the cause remanded, with instructions to the court to overrule the demurrer as to the 2d and 3d pleas of the appellant. Let the judgment be reversed at the cost of the appellee. Absent, Mr. Justice Scott. Note 1.—On recoopment, see Wheat v. Dotson, 12-708 and note.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.