Opinion
May, 1912.
Samuel Dickstein, for appellants.
Joab H. Banton, for respondent.
The plaintiff has recovered judgment upon a note received by it in payment for iron furnished to the defendants. The defendants pleaded partial failure of consideration in that the plaintiff failed to deliver the amount of merchandise agreed upon and failed to charge the reasonable and proper price for such of said materials and merchandise as had been furnished under the agreement between the parties, and pleaded a tender of the amount actually due.
At the trial the defendants attempted to prove that the iron was sold by weight and that the note was given under an agreement that the iron could be weighed by the defendants at any time before the note became due. All of this evidence was excluded as immaterial. I think that this ruling was erroneous. Partial failure of consideration is a defense between the original parties in an action upon a note. "If the party seeking to enforce it has himself violated some obligation incurred on his part, for instance, a warranty, an engagement to deliver goods, or the like, the promise sought to be enforced may be destroyed or reduced according to the measure of the defect." Oakley v. Boorman Johnston, 21 Wend. 588, 594. In this case if the defendants could prove that the note was given under a warranty that the iron delivered was of a certain weight and that the actual weighing was to be postponed, then the "promise sought to be enforced" should be "reduced according to the measure of the defect."
Judgment should be reversed and a new trial granted, with costs to appellants to abide the event.
SEABURY and PAGE, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellants to abide event.