Bellows, C. J.
The first question is, whether the evidence offered was admissible, under the pleadings as they then stood.
At common law, the total want, or failure of consideration, might be shown under the general issue, and by our statute of July 4, 1861, ch. 2497, in cases where a total want or failure of consideration would be a defence to a writ upon a promissory note or bill of exchange, the defendant may prove a partial failure of consideration in reduction of damages ; having first filed a brief statement thereof, at such time as the court shall order, and the question is, whether the brief statement filed in this case, is sufficient under this statute.
The substance of it is, that defendant will prove that there was a partial failure of consideration and the extent of it, without stating any facts upon which the defence is supposed to rest.
In Folsom v. Brown,21 N. H., 144, it was decided that a brief statement, being a substitute for a special plea, should contain all the substantial elements of such plea, and in that case, a brief statement was held to, as insufficient, because in justifying, the speaking of the words charged in the declaration, which was for slander, the defendant did not fully and distinctly admit the speaking of the words and justify them, and we perceive no reason, why this doctrine should not be applied in the case before us. The statute clearly requires a brief statement. The object of it is to give notice to the plaintiff of the matter to be set up in reduction of damages, and in requiring a brief statement, it is reasonable to suppose that the legislature contemplated, that it should correspond in its general features with the brief statements then in use.
The defendant here, offered to prove, that the contract of sale embraced a lot of woodland, which by accident or design, was not conveyed to him, and that as to the wood and timber on another lot, which was conveyed to him, the title had failed.
[128]*128These facts, we think, ought to have been set out substantially in the brief statement, that the plaintiff might have notice of what was to be urged. It is true, he might be supposed to havé knowledge already of what actually had. been done, but he may, notwithstanding have not been prepared for the attempt of the defendant, to prove the facts which he offered to prove, for the reason that he may not have understood them to exist. As for example, the defendant offers to prove that the contract of sale included one lot of woodland that was not conveyed. But, the plaintiff may have understood that it was not included, and in that case might, have no notice that defendent intended to set up such a contract.
We think, therefore, that the brief statement is not sufficient.
In the case of Folsom v. Brown, before cited, it was held that the proper practice is, to move to reject an insufficient brief statement before trial; but if that is not done, and the evidence under it is received without objection, it is then too late to take exception to it. It appears, from the case that objection was seasonably taken> and therefore, it must be held that this evidence was not admissible as the pleadings stand.
As, however, the defendant may amend his brief statement upon proper terms, we have considered the remaining question raised by the case; and that is whether under suitable pleadings, the evidence offered would make a case of a partial failure of consideration. The grounds suggested, are that the contract of sale, included a lot of woodland, which by design, was not conveyed to him, and that the title failed to the wood and timber upon another lot of land, for the reason that the plaintiff had before conveyed it to another.
At common law a total failure of consideration, is a good defence to an action upon a promissory note in the hands of the original payee. F’etcher v. Chase, 16 N. H., 38. Shepherd v. Temple, 3 N. H., 455. Tillotson v. Grapes, 4 N. H., 444. Earl v. Page, 6 N. H., 477. Parish v. Stone, 14 Pick., 210. 1 Parsons on Notes and Bills, 203, and cases.
• So, independent of statute, if there be a partial failure of consideration, and the sum to be deducted, is mere matter of compensation, it may be set up in defence pro tanto, though it is otherwise if the damages resulting from the failure are unliquidated-. Drew v. Towle, 27 N. H., 412. Riddle v. Sage, 37 N. H., 519. But, under our statute, a partial want or failure of consideration, may be set up in induction of damages, in an action on -a bill or note, whenever a total want or failure of consideration would be a defence.
The defendant offered, to prove that one of the lots, included in the bargain, was omitted in the conveyance, and that the title failed to the wood and timber upon another lot, that was conveyed; and the question is, whether the total failure to convey, or the total failure of title, would have been a defence to this action, before the statute in question.
If in respect to both, the answer should be in the affirmative, then, according to the terms of the statute, a partial failure to convey and R partial failure of title, would be admissible in reduction of damages.
[129]*129When promissory notes, are given for the price of land, -which the payee promises to convey to the maker, at a future time, the total failure of the vender to convey the land would clearly be a good defence to an action upon the note, and the same may be said when after a conveyance of the whole land with warranty, there is a total failure of title. 1 Parsons on Bills & Notes, 210, & notes & cases. 2 Kent, Com. 633-4, 474, and cases, & 632, & note C. Rice v. Goddard, 14 Pick., 293. Parish v. Stone, 14 Pick., 198, 210. Fisher v. Hoffeagle, 11 Johns, 50. Chandler v. Marsh & a., 3 Vermont, 161, Cook v. Mix, 11 Conn., 432, where the cases are collected. Tillotson v. Grapes, 4 N. H. 444. Fletcher v. Chase, 16 N. H., 38 ; Drew v. Towle, 27 N. H., 412.
In Drew v. Towle it is also laid down that a failure of title to one of several tracts of land conveyed with warranty, is a failure of consideration pro tanto, and when the amount can be ascertained by computation, it may be set up in defence to an action upon the promissory notes, given for the price of the whole land.
' This doctrine is fully sustained by authority, 2 Kent Com. 9th Ed. 633, 473, & notes & cases. 2 Grant, Ev. § 199. 1 Parsons on Con., 211, and notes. Cook v. Mix, 11 Conn., 432, and remaining cases cited. Palsifer & a. v. Hotchkins & a., 12 Conn., 234.
But, it is argued by the plaintiff’s counsel that the defendant cannot mitigate the damages in this way, without having first rescinded the entire contract, and offered to return what he had received; and to this point he cites Way v. Cutting, 17 N. H., 451. That was an action for money had and received, to recover back part of the money paid for several tracts of land, one of which proved not to have been conveyed. The court, Parker, C.
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Bellows, C. J.
The first question is, whether the evidence offered was admissible, under the pleadings as they then stood.
At common law, the total want, or failure of consideration, might be shown under the general issue, and by our statute of July 4, 1861, ch. 2497, in cases where a total want or failure of consideration would be a defence to a writ upon a promissory note or bill of exchange, the defendant may prove a partial failure of consideration in reduction of damages ; having first filed a brief statement thereof, at such time as the court shall order, and the question is, whether the brief statement filed in this case, is sufficient under this statute.
The substance of it is, that defendant will prove that there was a partial failure of consideration and the extent of it, without stating any facts upon which the defence is supposed to rest.
In Folsom v. Brown,21 N. H., 144, it was decided that a brief statement, being a substitute for a special plea, should contain all the substantial elements of such plea, and in that case, a brief statement was held to, as insufficient, because in justifying, the speaking of the words charged in the declaration, which was for slander, the defendant did not fully and distinctly admit the speaking of the words and justify them, and we perceive no reason, why this doctrine should not be applied in the case before us. The statute clearly requires a brief statement. The object of it is to give notice to the plaintiff of the matter to be set up in reduction of damages, and in requiring a brief statement, it is reasonable to suppose that the legislature contemplated, that it should correspond in its general features with the brief statements then in use.
The defendant here, offered to prove, that the contract of sale embraced a lot of woodland, which by accident or design, was not conveyed to him, and that as to the wood and timber on another lot, which was conveyed to him, the title had failed.
[128]*128These facts, we think, ought to have been set out substantially in the brief statement, that the plaintiff might have notice of what was to be urged. It is true, he might be supposed to havé knowledge already of what actually had. been done, but he may, notwithstanding have not been prepared for the attempt of the defendant, to prove the facts which he offered to prove, for the reason that he may not have understood them to exist. As for example, the defendant offers to prove that the contract of sale included one lot of woodland that was not conveyed. But, the plaintiff may have understood that it was not included, and in that case might, have no notice that defendent intended to set up such a contract.
We think, therefore, that the brief statement is not sufficient.
In the case of Folsom v. Brown, before cited, it was held that the proper practice is, to move to reject an insufficient brief statement before trial; but if that is not done, and the evidence under it is received without objection, it is then too late to take exception to it. It appears, from the case that objection was seasonably taken> and therefore, it must be held that this evidence was not admissible as the pleadings stand.
As, however, the defendant may amend his brief statement upon proper terms, we have considered the remaining question raised by the case; and that is whether under suitable pleadings, the evidence offered would make a case of a partial failure of consideration. The grounds suggested, are that the contract of sale, included a lot of woodland, which by design, was not conveyed to him, and that the title failed to the wood and timber upon another lot of land, for the reason that the plaintiff had before conveyed it to another.
At common law a total failure of consideration, is a good defence to an action upon a promissory note in the hands of the original payee. F’etcher v. Chase, 16 N. H., 38. Shepherd v. Temple, 3 N. H., 455. Tillotson v. Grapes, 4 N. H., 444. Earl v. Page, 6 N. H., 477. Parish v. Stone, 14 Pick., 210. 1 Parsons on Notes and Bills, 203, and cases.
• So, independent of statute, if there be a partial failure of consideration, and the sum to be deducted, is mere matter of compensation, it may be set up in defence pro tanto, though it is otherwise if the damages resulting from the failure are unliquidated-. Drew v. Towle, 27 N. H., 412. Riddle v. Sage, 37 N. H., 519. But, under our statute, a partial want or failure of consideration, may be set up in induction of damages, in an action on -a bill or note, whenever a total want or failure of consideration would be a defence.
The defendant offered, to prove that one of the lots, included in the bargain, was omitted in the conveyance, and that the title failed to the wood and timber upon another lot, that was conveyed; and the question is, whether the total failure to convey, or the total failure of title, would have been a defence to this action, before the statute in question.
If in respect to both, the answer should be in the affirmative, then, according to the terms of the statute, a partial failure to convey and R partial failure of title, would be admissible in reduction of damages.
[129]*129When promissory notes, are given for the price of land, -which the payee promises to convey to the maker, at a future time, the total failure of the vender to convey the land would clearly be a good defence to an action upon the note, and the same may be said when after a conveyance of the whole land with warranty, there is a total failure of title. 1 Parsons on Bills & Notes, 210, & notes & cases. 2 Kent, Com. 633-4, 474, and cases, & 632, & note C. Rice v. Goddard, 14 Pick., 293. Parish v. Stone, 14 Pick., 198, 210. Fisher v. Hoffeagle, 11 Johns, 50. Chandler v. Marsh & a., 3 Vermont, 161, Cook v. Mix, 11 Conn., 432, where the cases are collected. Tillotson v. Grapes, 4 N. H. 444. Fletcher v. Chase, 16 N. H., 38 ; Drew v. Towle, 27 N. H., 412.
In Drew v. Towle it is also laid down that a failure of title to one of several tracts of land conveyed with warranty, is a failure of consideration pro tanto, and when the amount can be ascertained by computation, it may be set up in defence to an action upon the promissory notes, given for the price of the whole land.
' This doctrine is fully sustained by authority, 2 Kent Com. 9th Ed. 633, 473, & notes & cases. 2 Grant, Ev. § 199. 1 Parsons on Con., 211, and notes. Cook v. Mix, 11 Conn., 432, and remaining cases cited. Palsifer & a. v. Hotchkins & a., 12 Conn., 234.
But, it is argued by the plaintiff’s counsel that the defendant cannot mitigate the damages in this way, without having first rescinded the entire contract, and offered to return what he had received; and to this point he cites Way v. Cutting, 17 N. H., 451. That was an action for money had and received, to recover back part of the money paid for several tracts of land, one of which proved not to have been conveyed. The court, Parker, C. J., held that as the contract was entire and had not been rescinded, the action could not be sustained, but the party might have relief in equity, thei'e having been part performance. The court, however, say, that if no other remedy existed, they should be inclined to consider the case an exception to the general rule, and allow the plaintiff to recover a proportionate part of the purchase money.
There are other authorities to the same point, Benton v. Schemerhorn, 21 Vermont, 289. Miner v. Bradley, 22 Pick., 451. Although these cases both arise out of sales of goods.
We think, however, that these cases are not decisive here. In the first place, they are actions of assumpsit to recover back part of the purchase money, and the plaintiff might properly be held to pursue the appropriate remedy, while in cases like the one before us, as the defendant is permitted to set up the defence to mitigate the damages, in order to avoid circuity of action; and to prevent the recovery by the plaintiff, of money which the defendant in a cross action growing out of the same matter, might recover back. And besides, we think, the law of July 4, 1861, Was designed to reach cases like this. Its terms are, certainly, broad enough to cover them, and there is nothing in the nature of the case or the condition of the law as it stood before, to exclude these cases from the operation of the statute.
[130]*130If a receiver of the entire contract was necessary before the failure of the consideration could be urged in defence, there would then be no occasion for the aid of the statute, for the vendee would then be entitled to recover back the entire consideration.
We think, however, that the statute was designed to reach just such cases as this, to enable the parties to adjust the whole controversy in one suit and thus avoid circuity, which in many cases would work substantial injustice.
When the damages caused by a partial failure of consideration, may readily be ascertained by computation, it might before this statute, as we haveseen.be set up to reduce the damages, and the difference between that case and where the amount is unliquidated, is not one of principle, but is founded in the supposed inconvenience of liquidating the amount of damages in the same suit.
The inconvenience, however, is no greater, as we perceive, than when a cross action is brought to recover the damages, especially when due notice of the defence is given, aud it has been held that if the defect be the want of consideration instead of a failure of consideration, it may be set up as a defence pro tanto, although it be but partial and the amount not liquidated, Parish v. Stone, 14 Pick., 198, 210. When the note was partly for services rendered, aud partly a gratuity, to equalize the distribution of promiser’s estate, and there was no means to fix the amount of -the services by computation, and it was hold to be .proper to let the jury fix the value of the services and return a verdict for that only, and Shaw, C. J., says it seems very clear that want of consideration, either total or partial may always be shown by way of defence, and he cites Lord Ellenborough in Tye v. Gwynne, 2 Camp., 346.
So it has been held that on a partial failure of consideration in a sale the defendant may recoupe his damages, on a breach of warranty, 2 Kent, Com., 9th Ed., 632, *473, note C., & cases cited. Rob v. McAllister, 8 Wend., 109. Still v. Hall, 20 Wend., 51. Bateman v. Pierce, 2 Hill, 171.
In the case before us, the claims of the parties arise out of the same transaction and may be most conveniently investigated together, and justice requires that they should be, aud not compel the parties to submit to the expense of two suits when the whole matter may be tried in one equally as well. See Sedgwick on Dam., ch. 17, on the subject of recoupement where it is laid doAvn that it is allowed though both demands are unliquidated.
It is obvious from these authorities and others, that the rigor of the ancient rules in respect to a partial failure of consideration, has been, generally, relaxed, and, we think, that it is in this spirit that we have the statute under consideration.
Under that statute it has been decided that a vender in a suit on the note given for the price of a horse may set up by way of defence a partial failure of consideration, Nichols v. Hunton, 45 N. H., 471. The court, by Bell, C. J., says that the statute does not change the rights of the parties to this contract, because the offset of the [131]*131two claims could before be made by circuitous proceedings leading to the same result, which can now be reached directly under this statute.
It will be observed too that the contract was not rescinded.
We are, therefore, of the opinion that both of these matters of defence are admissible in reduction of damages.
. We do not, however, undertake to decide whether the defendant can prove that by said contract the fourteen acre lot was included in the sale ; if that question should arise it will be time to consider it when all the circumstances are before us.
Gase discharged.