Carpenter v. Phillips

7 Del. 524

• Court: Superior Court of Delaware
• Decided: July 5, 1863
• Status: Published

Opinion

The Court,

Gilpin, C. J.,

charged the jury: When the action was upon a bill of exchange, or a promissory note, or a due bill like the one in question, a partial failure of the consideration for which it was given, was no defence. On the contrary, if the goods, or consideration received for it were of any value, the partial failure of their worth or value will be of no avail as a defence to the action, and the plaintiff would be entitled to recover the whole amount of the note, or bill, with interest from the date of it, and the defendant in such a suit will be left by the law to his remedy by an action against the other party to recover damages for such partial failure of the consideration, or of the value of the article for which it was given. If, therefore, the-horse in question was of any value at the time of the sale of him by the plaintiff to the defendant, the fact that he was not worth the total price agreed to be paid for him, would of itself alone be no defence in the action then pending. But if he was of less value for the reason which had been alleged and stated by witnesses who had been sworn and examined in the trial of the cause, and the plaintiff knew at the time of the sale that he had any such disease or defect as had been described by them and fraudulently concealed it from the defendant, or falsely deceived him in regard to such a latent or hidden disease or defect, then it would constitute such a fraud as would vitiate the sale, and he would not be entitled to recover in the action on the bill in question.

Oullen, for the plaintiff.

Paynter, for the defendant.