Catlett v. M'Dowell

4 Blackf. 556, 1838 Ind. LEXIS 89

Opinion

ASSUMPSIT on a promissory note dated the fourth of January, 1836, and payable or. year after date. Pleas, 1. The general issue. 2. That the note was given for a part of the consideration of a tract of land, which the plaintiff was to convey to the defendant, free from incumbrances, on the day and year aforesaid, but which he had not so conveyed. 3. Similar to the second. 4. Similar to the second, except that it states that the land was to be conveyed in fee-simple, by a good and sufficient deed of conveyance with the usual covenant of general warranty, and that it had not been so conveyed. Replication to the second plea, admitting the consideration of the note as alleged, and stating that on the ninth of March, 1836, the plaintiff had fully complied with his agreement, by executing and delivering to the defendant a good and sufficient warranty deed for the land. Held, on general demurrer, that the third and fourth pleas and the replication to the second plea, were sufficient

(1).

The defendant may, under the general issue, defeat an action of assumpsit on a promissory note, by showing the want or failure of consideration, or he may reduce the damages by showing a partial failure of the consideration, Jamison v. Buckner, 2 Blackf. 77.—Street v. Blay, 2 Barn. & Adol, 456 (2).

There was another point decided in this cause relative to the replication to a fifth plea, but the decision as to that point having been since overruled, is omitted.

Accord. Tucker v. Tipton, ante, p. 529.