Hubbard v. Galusha

23 Wis. 398

• Court: Wisconsin Supreme Court
• Decided: June 15, 1868
• Status: Published

Opinion

Cole, J.

The defense to the note sued on was a partial or total failure of consideration. There is no doubt but this defense was available, since the note was given to one of the plaintiffs, who was a partner of the other. Of course, this defect in 'the note might be shown as between the original parties, or as to one taking the same with notice thereof; and it is a familiar rule of law that notice or knowledge of any one partner is notice or knowledge affecting all the rest, or rather the partnership as a whole. The want or failure of consideration might, then, be insisted on as a defense to the action. Erom the return of the justice of the testimony taken on the trial, it appears that the note was given for some fruit trees. It likewise appears that the understanding was, between the maker and payee, that only those trees were to be paid for which lived. There is no conflict of testimony upon this point, as we understand the return. And the proof is that but four of the trees lived, the price of which was a dollar. Now the verdict of the jury is entirely unsupported by the evidence. The jury erred in allowing the plaintiffs pay for trees which died, and which the defendant was not to pay for.

By the Court. — The judgment of the circuit court is affirmed.