as at law, the defendant, for the purpose of preventing circuity of action, may show, by way of defence, in order to lessen or defeat the recovery, a total or partial failure of consideration, as the case may be, when sued for the consideration of a sale, or upon the security given for the purchase-money. (d) In Illinois, by statute, a want of title in the vendor of lands may be set up by the vendee on the note given for the purchase-money, as a failure of the consideration. (e) So, the true value of articles sold may be shown in reduction of the price, even on a note given, as between the original parties, in cases of sales with warranty, or fraudulent representation, though the article has not been returned; and this is allowed to avoid circuity of action. (f) In Louisiana, the failure of consideration, either in whole or in part, in a contract of sale, has been held to be a defence as far as it goes; on the prin

(d) Lewis v. Wilson, 1 Edw. Ch. 305.

(e) Mason v. Wait, 4 Scamm. 127. The law allows a total or partial failure of consideration, in every note or instrument for the payment of money or property, to be set up as a defence. The object of the Act is to prevent a multiplicity of actions. Duncan v. Charles, Idem, 561.

(f) McAlister v. Reab, 4 Wendell, 483. S. C. 8 Idem, 109. Miller v. Smith, 1 Mason, 437. Steigleman v. Jeffries, 1 S. & Rawle, 477. Beecker v. Vrooman, 13 Johns. 302. See, also, to the same point, Street v. Blay, 2 Barn. & Adol. 456; Poulton v. Lattimore, 9 B. & Cress. 259; Pearson v. Wheeler, Ryan & Moody, 303; Harrington v. Stratton, 22 Pick. 510. In this last case, the authorities pro and con. were extensively examined. In the two cases of Street v. Blay, and of Poulton v. Lattimore, it is settled, that where an article is warranted, and the warranty not complied with, the vendee may refuse to receive the article at all, or he may receive it, and bring a cross action for the breach of the warranty, or, without bringing a cross action, he may use the breach of the warranty in reduction of the damages, in an action by the vendor for the price. There is a very learned discussion and citation of authorities under the case of Cutter v. Powell, 6 Term Rep. 320, in Smith's Leading Cases, Law Library, N. S. vol. xxviii. on the vexed question as to the remedy on special contracts, remaining in part unperformed. To the accumulation of English cases, the learned American editors of the Law Library have given also a view of the American cases on the same subject. In Ferguson v. Huston, 6 Missouri, 407, it was held, after an elaborate examination of the authorities, that defect or unsoundness in a chattel sold cannot be set up in bar of a recovery on a note given for such chattel, unless the vendee, on the discovery of such defect or unsoundness, returns, or offers to return the chattel, or shows it to be valueless. In the learned opinion of the dissenting judge it was held, that the retention of the chattel, in a case of fraud or breach of warranty, was no waiver of the purchaser's right of defence on these grounds, by way of mitigation of damages, and to prevent circuity of action. If, however, he meant to rescind the contract for the fraud or defect, there must then have been shown a return, or tender of a return of the article.

a See, also, Cook v. Castner, 9 Cush. 266.

ciple that matters which diminish, as well as those which destroy the demand, may be pleaded, in defence of the suit. (g) The discovery by the vendee, before payment, of incumbrances, is also held, in Pennsylvania, to be a valid defence, in a suit for the purchase-money, to the amount of the incumbrance, whether there existed a general or special warranty. (h) The defendant may, by way of defence, show a breach of warranty as to the articles sold, without either returning them, or giving notice to the vendor to take them away. (i) In Virginia, it was provided by statute, in 1830, that a defendant might allege, by way of plea, not only fraud in the consideration or procurement of any contract, but any such failure in the consideration thereof or any such breach of warranty of the title or soundness of personal property, as would entitle the defendant, in any form of action, to recover damages at law, or to relief in equity. The rule in Ohio is, that the fraud must go to the whole consideration, or the payment of a note cannot be avoided at law, upon the ground of fraud. (j) This is also the law in Kentucky; and a plea going only to a part of the consideration is bad. (k)

*There has been much discussion and diversity of opinion on the subject of rescinding and of enforcing the spe

*475

(g) Evans v. Gray, 12 Martin (Louis.) 475, 647. But in Fulton v. Griswold, 7 Martin (Louis.) 223, it was held, that the vendee of land could not refuse payment of the price, nor could he require surety from the vendor until suit brought to evict him. And it seems now to be settled in South Carolina, that, on a sale of land, a defect of title in the vendor is no defence at law to a suit on the note given for the consideration-money, so long as the purchaser remains in possession under an equitable title. Carter v. Carter, 1 Bailey, 217. Bordeaux v. Cave, Ibid. 250. Westbrook v. M'Millan, Ibid. 259. (h) Christy v. Reynolds, and Tod v. Gallagher, 16 Serg. & Rawle, 258, 261. (i) Steigleman v. Jeffries, 1 Idem, 477.

(j) Harlan v. Read, 3 Ohio, 285.

(k) Delany v. Vaughn, 2 Bibb, 379. Wallace v. Barlow, Ibid. 168. The rule in S. Carolina in respect to warranty of title, both as to real and personal property, is thoroughly discussed and stated by Mr. Justice Earle, in Moore v. Lanham, 3 Hill (S. C.) 299. In regard to the construction of the warranty of title, there is no difference between real and personal property. Every covenant of general warranty of title is held to be a covenant of seisin, and the vendee may bring covenant on the warranty, or resist an action for the price, without actual eviction, and whether there has been a partial or a total failure of consideration. A total or partial failure in regard to title, as well as a total or partial failure in regard to soundness, will avail a purchaser of personal property as a valid defence, when sued for the purchase-money, to the same extent, in the same form, and upon the same principles, as the like failure would avail a purchaser of real estate. The jurisprudence of South Carolina is thus rendered free from embarrassing distinctions on this subject, by the comprehensiveness, simplicity, and certainty of the rule.

cific performance of contracts, in the cases of partial failure of the consideration. In one case, (a) Lord Kenyon observed, when sitting in chancery, that the court had gone great lengths in compelling parties to go on with purchases, contrary to their original agreement and intention; but he said a case might be made out sufficient to put an end to the whole contract, when the seller could not make a good title to part of the subject sold. In the case of the Cambridge Wharf, the seller made title to all the estate but the wharf, and that part of the land was the principal object of the buyer in making the purchase, and the buyer who had contracted for the house and wharf was compelled to complete the purchase without the wharf. But, as Lord Kenyon truly observed, that was a determination contrary to all justice and reason. There have been a number of hard cases in chancery, (b) and in which performance has been enforced, though there was a material variance between the actual and supposed circumstances of the subject, and when those circumstances were wanting which were the strong inducement to the contract. These cases had gone to such extravagant lengths, that Lord Erskine declared (c) he would not follow them, nor decree specific performance, when the main inducement to the purchase had failed. In many cases, however, where the title proves defective in part, or to an extent not very essential, specific performance will be decreed, with a ratable deduction of the purchase-money, by way of compensation for the deficiency. (d)

(a) Pool v. Shergold, 1 Cox, 273.

(b) Several cases of that kind are alluded to by Lord Eldon, in 6 Vesey, 678; and see also, Oldfield v. Round, 5 Idem, 508.

(c) Halsey v. Grant, 13 Vesey, 78. Stapylton v. Scott, Ibid. 426.

(d) Milligan v. Cooke, 16 Vesey, 1. King v. Bardeau, 6 Johns. Ch. 38. Smith v. Tolcher, 4 Russell, 305. Soule v. Heerman, 5 Louis. 358. See a statement of the difficulties on this subject by the master of the rolls, in Thomas v. Dering, 1 Keen, 729. Sales by an heir apparent of expectancies or reversionary interests, will be set aside when the consideration is inadequate, and advantage was taken of his necessities. Earl of Portmore v. Taylor, 4 Sim. 182. Gibson v. Jeyes, 6 Vesey, 266. Peacock v. Evans, 16 Vesey, 512. Gowland v. De Faria, 17 Idem, 20. Addis v. Campbell, 4 Beavan, 401, S. P. See, in Lord Aldborough v. Trye, 7 Clarke & Finn. 436, the observations of Lord Cottenham, on the case of Gowland v. De Faria, relative to the value of expectancies. The sale of the expectation of an heir of an inheritance in real as well as personal estate, will be supported in chancery, if made bonâ fule and for a valuable consideration. This was so declared by the assistant vice-chancellor, in Varick v. Edwards, 1 Hoff. Ch. 383, 395-405, after an elaborate examination of authorities. Post, vol. iv. 261, S. P. So, the release by an heir apparent of his estate in expectancy, with the

The good sense and equity of the law on this subject is, that if the defect of title, whether of lands or chattels, be so *great as to render the thing sold unfit for the use in- *476 tended, and not within the inducement to the purchase, the purchaser ought not to be held to the contract, but be left at liberty to rescind it altogether. This is the principle alluded to by Pothier, and repeated by Lord Erskine and Lord Kenyon. (a) In South Carolina it has been held, that if the deficiency in the quantity of land be so great as to defeat the object of the purchase, the vendee may rescind the bargain; and if the defects were not so great as to rescind the contract entirely, there might be a just abatement of price; and this doctrine applies equally to defects in the quantity and quality of land, and for unsoundness and defects in personal property. (b) The same principle was declared in Pennsylvania, in the case of Stoddart v. Smith, (c) on a contract for the purchase of land. If there be a failure of title to part, and that part appears to be so essential to the residue that it cannot reasonably be supposed the purchase would have been made without it, as in the case of the loss of a mine, or of water necessary to a mill, or of a valuable fishery attached to a parcel of poor land, and by the loss of which the residue of the land was of little value, the contract may be dissolved in toto. But the court in the last case limited very much the right of rescinding a contract for a partial failure of title; for if the sale was of lots in different parts of a city, it was not dissolved by the failure of title to some of the lots, not adjoining or particularly connected with the others, nor essential. to their use or enjoyment. (d) It is to be regretted

consent of the ancestor, on a valid consideration, with a covenant of warranty running with the land, is good and effectual at law. Coburn v. Hollis, 3 Metcalf, 125. In Scotland, an agreement for the sale of a future or expected inheritance is lawful. Stair's Institutions, by More, vol. i. note 1, p. 63.

(a) This principle was expressly recognized, after a full and elaborate discussion of the subject, by the Court of Errors and Appeals in Mississippi, in Parkham v. Randolph, 4 How. U. S. 435.

(b) Pringle v. Witten, 1 Bay, 256. Gray v. Handkinson, Ibid. 278. Glover v. Smith, 1 Desaus. 433. Wainwright v. Read, Ibid. 573. Tunno v. Flood, 1 M'Cord, 121. Marvin v. Bennett, 8 Paige, 312.

(c) 5 Binney, 355, 363.

(d) Where a farm was sold in gross or by its boundaries, and neither party knew the precise quantity conveyed, and the deed contained the words more or less, and the quantity was afterwards ascertained to be less than the parties supposed, the Court of Chan

that the embarrassment and contradiction which accompany the English and American cases on this subject cannot be relieved by the establishment of some clear and definite rule, like that declared in France, which shall be of controlling influence and universal reception. (e)

* 477

*(3.) The price is an essential ingredient in the contract of sale; and it must be real, and not merely nominal and fixed, or be susceptible of being ascertained in the mode prescribed by the contract, without further negotiation between the parties. Pretium constituti oportet, nam nulla emptio sine pretio esse potest. (a)

cery refused to interfere for the relief of the purchaser, the transaction being fair and honest, and the deficiency small. Marvin v. Bennett, 8 Paige, 312.1

(e) The rule in chancery, upon the principle of equitable conversion, is to consider, that which was agreed to be done as done, if the execution of the agreement would be lawful and just. In pursuance of this doctrine, the purchase-money of lands, contracted to be sold during the life of the testator, is treated as personal estate. Baden v. Countess of Pembroke, 2 Vern. 212. Lawes v. Bennett, 1 Cox, 167. p. 230, n. b.2

Vide supra,

(a) Inst. 3, 24, 1. Dig. 18, 1, 2. Pothier, du Cont. de Vente, part 1, art. 2, n. 18. Brown v. Bellows, 4 Pick. 189. Bell on the Contract of Sale, Edin. 1844, p. 18. But if the price be not fixed, yet after delivery of the goods the contract of sale is deemed valid, and the purchaser must pay for their reasonable value. Acebal v. Levy, 10 Bing. 382. Hoadley v. M'Laine, Ibid. 482. Bell, ub. supra, 20. Inadequacy of price, independent of other circumstances, is no ground for relief in equity against a bargain, unless it be so gross or excessive as to afford a necessary presumption of fraud, imposition, undue influence, or want of a reasonable judgment. Osgood v. Franklin, 2 Johns. Ch. 23, 24. The opinions of Sir Thomas Clarke, Lord Thurlow, Lord Ch. B. Eyre, Lord Eldon, and Sir William Grant, were all referred to in the case cited in support of that position. See, also, to the same effect, Copis v. Middleton, 2 Madd. Ch. 410. Butler v. Haskell, 4 Desaus. Eq. (S. C.) 651. Glenn v. Clapp, 11 Gill & Johns. 1. By the civil law, a sale for one half the value might be set aside for inadequacy; and Lord Nottingham, in Nott v. Hill, 2 Ch. Cas. 120, observed, that he wished it were so in England. If the price of the purchase was less than one half the value, the inequality was deemed in the civil law enormis læsio, and relief was afforded. This is the rule also in Louisiana. Copley v. Flint, 1 Rob. (Louis.) 125. At law the rule is more stern, and a promise or obligation cannot be defeated, in whole or in part, on the ground of the inadequacy of the consideration. The slightest consideration is sufficient to sup

1 Where a cargo of corn was sold to arrive, "the quantity to be taken from the bill of lading," and payment was made according to the bill, the purchaser was not allowed to recover a part of the price on the ground of deficiency in the cargo on arrival. Covas v. Bingham, 22 E. L. & Eq. 183.

2 A clear intention collected from the whole scope of a will is equivalent to a specific direc tion to sell and equitable conversion takes place. Phelps v. Pond, 23 N. Y. 69. But a mere permission to sell does not work such a conversion. Lucas v. Brandreth, 28 Beavan, 273.