Smart v. Gale

62 N.H. 62

Opinion

Clark, J.

The plaintiff seeks to recover the value of the fixtures on the ground of a failure of consideration. This is not a case of a payment made upon a legal consideration which has wholly failed, and may therefore be recovered back. Leach v. Tilton, 40 N. H. 473, 475. There was no separate valuation of the fixtures, and no offer to return them. Weeks v. Robie, 42 N. H. 316. The contract was entire, and has never been rescinded, and the action cannot be maintained. Way v. Cutting, 17 N. H. 450; Miner v. Bradley, 22 Pick. 457; Clark v. Baker, 5 Met. 452; Bassett v. Percival, 5 Allen 345.

Judgment for the (defendant.

Allen, J., did not sit: the others concurred.