Withers v. Greene,
50 U.S. 213 (1850)

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U.S. Supreme Court

Withers v. Greene, 50 U.S. 9 How. 213 213 (1850)

Withers v. Greene

50 U.S. (9 How.) 213


The laws of Alabama place sealed instruments, commonly called single bills, upon the footing of promissory notes, by allowing the defendant to impeach or go into their consideration, and also permit their assignment, so that the assignee can sue in his own name. But in such suit, the defendant shall be allowed the benefit of all payments, discounts, and setoffs, made, had, or possessed against the same, previous to notice of the assignment.

The construction of this latter clause is that where an assignee sues, the defendant is not limited to showing payments or setoffs made before notice of the assignment, but may also prove a total or partial failure of the consideration for which the writing was executed.

Page 50 U. S. 214

Proof of a partial failure of the consideration may be given in evidence in mitigation of damages.

The English and American cases upon this point examined, showing a relaxation of the old rule, and allowing a defendant to obtain justice in this way, instead of driving him to a cross action for damages.

Thus, where the obligor of a single bill was sued by an assignee, and pleaded that the bill was given for the purchase of horses which were not as sound nor of as high a pedigree as had been represented by the seller, such a plea was admissible.

It is not a sufficient objection to the plea that it omits a disclaimer of the contract, and a proffer to return the property. If the defendant looked only to a mitigation of damages, he was not bound to do either, and therefore was not bound to make such an averment in his plea.

Nor is it a sufficient objection to the plea, that it avers that the obligation was obtained from him by fraudulent representations, or that it concludes with a general prayer for judgment. Pleas in bar are not to receive a narrow and merely technical construction, but are to be construed according to their entire subject matter.

In this respect there is a difference between pleas in bar and pleas in abatement.

It was an action of debt brought in the District Court of the United States for the Middle district of Alabama, by May, assignee, on a single bill, under seal, for the payment of three thousand dollars, executed by R. W. Withers to A. B. Newsom, a citizen of Tennessee, and by him assigned to the plaintiff. Pending the suit, May died, and Greene qualified and revived in him name as administrator.

After some pleas which were withdrawn, the defendant filed the following:

"And for a further plea in this behalf, said defendant, by leave &c., says, onerari non, because he says that heretofore, to-wit, on the ___ day of _____, in the year 1839, said defendant, at the instance and request of one A. B. Newsom, the payee of the sealed note or writing obligatory in the plaintiff's declaration mentioned, purchased of the said Newsom two certain fillies -- that is to say, one dark brown filly, said to have been foaled in the spring of the year 1835, and one sorrel filly, said to have been foaled 22 June, in the year 1837, at and for a large sum of money, to-wit, the sum of four thousand dollars, to be paid by the said defendant to the said Newsom; for the payment of which said sum, in part, defendant gave to the said Newsom the said sealed note or writing obligatory, in the said plaintiff's declaration described, and said defendant avers that said sealed note was given for and upon no other consideration whatsoever. And said defendant further avers that the said Newsom falsely and fraudulently represented to said defendant, that the said fillies were raised by himself, and that the said fillies were sound, and that the said fillies had

Page 50 U. S. 215

certain pedigrees, that is to say -- the pedigrees are set forth in the plea, but they are here omitted, all which said representations as to the soundness of the said fillies, as to the fact that they were raised by the said Newsom, and as to their pedigrees, were false and untrue, and known to be false and untrue by the said Newsom, and were so made, as aforesaid, by the said Newsom to deceive and defraud the said defendant."

"And said defendant further says that he, relying upon the said false and fraudulent representations of the said Newsom, and believing the same to be true, made the said purchase of the said fillies. And said defendant further says that said fillies were purchased by him as aforesaid for their blood, and for the turf, and that otherwise they were wholly worthless to the said defendant. And said defendant further says that the said Newsom was before, and at, and hath been ever since, and still is, a citizen of the State of Tennessee, residing three hundred miles or more from the residence of said defendant, who then resided, and still resides, in the County of Greene in this state, and that said Newsom brought the said fillies from Tennessee to the residence of said defendant, in Greene County, and then sold them to said defendant as aforesaid."

"And said defendant further saith, that he did not discover the extent of the unsoundness of the said fillies until a long time after said purchase, to-wit, the fall after the said purchase, when they were being trained for the turf, and that he did not learn that the pedigrees were false until a long time after said purchase, to-wit, some time in the fall of 1839, or winter of the year 1839-1840."

"And said defendant further saith from the time he discovered the permanent unsoundness of the said fillies as aforesaid, and the falsity of the said pedigrees as aforesaid, he was ready, willing, and desirous to, and would have returned and delivered the said fillies to the said Newsom, if he had had an opportunity so to do, which he did not, and that from the discovery of the fraud of the said Newsom as aforesaid, up to the death of the said fillies, which happened during the winter and spring of the year 1840, he was willing and ready to deliver and return the said fillies to the said Newsom, as aforesaid."

"And said defendant further saith that said fillies died, as aforesaid, without the fault or neglect of the said defendant or his servants, all which several matters said defendant is ready to verify. And said defendant saith that the said sealed note or writing obligatory was obtained from him by the said Newsom by the false and fraudulent representations as aforesaid, and is therefore fraudulent and void in law, wherefore said

Page 50 U. S. 216

defendant prays judgment, whether he ought to be charged with the said debt,"


To this plea the plaintiff demurred, and in May, 1843, the court sustained the demurrer and gave judgment for the plaintiff in the sum of three thousand dollars debt, and eight hundred and eighteen dollars damages, together with costs.

The defendant sued out a writ of error, and brought the case up to this Court.

Page 50 U. S. 220

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