ROBERT COULTER V. CHRISTOPHER E. LEE.

Consideration-Partial failure of.

To a declaration on a promissory note defendant pleaded as to £137 10s., parcel, &c., that on, &c., the plaintiff represented that he was the owner of certain lands, as the fact was, and that he was the equitable owner of a certain other lot of land under one R., who had purchased from the Crown and held the same for the plaintiff; and plaintiff then falsely and fraudulently represented to the defendant that he could procure said R. to make an assignment of the said lot te the defendant; and the said plaintiff having so represented, and offering to sell all his right, title and interest in the above lands at, &c., per acre, amounting to £677 58., payable £250 cash and the balance by two notes of the defendant, defendant was induced by such representations to accept the aforesaid offer; and thereupon-to wit, on &c., and contemporaneously with the making of the said noteplaintiff by deed poll conveyed to defendant all his (plaintiff's) right, title and interest; in and to the several lands above mentioned: then avers payment of £250 in cash and the making of the two promissory notes, one of which is the note declared on.

The defendant then avers that the plaintiff, at the time of the making of the said promissory note in the declaration mentioned, had no right, title or interest in the said lot of land, and did not nor could procure said R. to assign to the defendant his right, title and interest in the said lot, but said R. has hitherto refused and hath incapacitated himself from assigning to the defendant by assigning to another person.

Held bad on demurrer, on the ground that a partial failure of consideration is no defence when the amount of the failure is unlimited.

Writ issued on the 6th of December, 1854: declaration, on the 19th of December, 1854. Assumpsit by plaintiff as payee against defendant as maker of a promissory note for £213 12s. 6d., with interest, dated 6th May, 1854, payable six months after date, with an averment that the interest amounts to a large sum-to wit, the sum of £6 11s. 6d.

Plea-As to £137 10s., parcel of the sum of £213 12s. 6d. in the promissory note in the declaration mentioned, and all damages demanded by the plaintiff in respect thereof, defendant saith that heretofore-to wit, on the said 6th day of May in said declaration mentioned-the plaintiff represented to the defendant, as the fact was, that he had the right, title and interest in and to certain the following lands—that is to say, to the east half of lot No. 13 in the second concession of the township of Tosorontio, in the county of Simcoe; lot No. 19 in the fifth concession of said township; lot No. 32 in the fifth concession of said township, and lot No. 17 in the sixth concession of said township; and said plaintiff at the said time represented to the defendant that he was the equitable owner of lot No. 14 in the second concession of

said township; which said equitable ownership of him the plaintiff, as he alleged, arose as follows: namely, "that one Alexander Ruthven had purchased the right and title to said last mentioned lot (which said lot contains two hundred acres of land) from the Crown, who at the same time of such sale to him had the right to grant the same, but that the said Alexander Ruthven had purchased the same on behalf of the plaintiff, and held the same as trustee for the plaintiff; and the said plaintiff then falsely and fraudulently represented to the defendant that he could procure the said Alxander Ruthven to make an assignment of his interest in said lot No. 14 to the plaintiff, and that the said Alexander Ruthven, upon being called upon to do so, would assign to the defendant all his interest in the said land-to wit, the said lot No. 14; and the plaintiff having so represented, and offering to sell all his right, title and interest in the above lands to the defendant (there being in the whole in said lands eight hundred and sixty acres of land) at and for the price or sum of fifteen shillings and ninepence per acre, amounting in the whole to six hundred and seventy-seven pounds and five shillings, the said sum to be paid as follows: that is to say, "the sum of two hundred and fifty pounds cash down, and the balance to be secured by the promissory notes, to be made for two hundred and thirteen pounds twelve shillings and six pence each by the defendant, payable to the plaintiff; the defendant was induced by the said representations of the plaintiff to accept the offer so made, and thereupon, on-to wit, on the said sixth day of May, and contemporaneously with the making of said note, the said plaintiff executed to the defendant a deed poll, which said deed poll, sealed with the seal of the plaintiff, the defendant brings here into court, by which said deed poll the said plaintiff, for and in consideration of the sum of six hundred and seventy-seven pounds and five shillings, therein expressed to have been in hand well and truly paid by the defendant to the plaintiff, upon the execution and delivery thereof, and the receipt whereof is thereby acknowledged, bargained, sold, assigned and transferred unto the defendant all his the plaintiff's right, title and interest, benefit, claim and demand, whether at law or in equity or otherwise

howsoever, of, in and to the several lands and every of them respectively-namely, in said deed poll,-the said lands, tenements and premises therein mentioned being those hereinbefore mentioned; and the defendant avers that at the date of execution of said deed poll he paid to the plaintiff two hundred and fifty pourds, part of the said sum of six hundred and seventy-seven pounds six shillings therein mentioned, and made to him his two several promissory notes for two hundred and thirteen pounds twelve shillings and six pence each, to secure the balance of the said sum of six hundred and seventy-seven pounds and five shillings therein mentioned, one of which said notes is the note in the said declaration mentioned; and the other note which said defendant then gave is not yet due.

And the defendant avers that at the date of the execution of said deed poll and of the making of said promissory note in declaration mentioned, the plaintiff had no right, title or interest in the said lot No. 14 to convey or assign; and the plaintiff did not and could not then or since that time procure the said Alexander Ruthven to assign to the defendant his right and interest in said lot No. 14 or any part thereof, although the said plaintiff and said defendant, after the making of the said note in the said declaration mentionedto wit, on the seventh day of May, in the year of our Lord one thousand, eight hundred and fifty-four, and frequently since that time-requested the said Alexander Ruthven to assign his right and interest in said lot to the defendant; and the said Alexander Ruthven then and ever since has refused to assign his right and interest therein to the defendant, although the defendant was then and ever since has been ready and willing to accept an assignment of his right and interest therein.

And the said Ruthven has since that time incapacitated himself from conveying his right and interest therein to the defendant, by conveying his right and interest therein to another party other than the defendant or said plaintiff; concluding with a denial of possession by defendant: verification. Demurrer to plea, on the grounds that the circumstances set forth in the plea do not shew any defence, because the

partial failure of consideration or fraud on the part of the plaintiff to the extent shewn by the plea, cannot be set up, the defendant still insisting on and taking benefit from the conveyance set out in the plea.

Second. Because the failure shewn is unliquidated.

Third. Because the note sued on is one of two, and the failure applies to the other note and the cash payment as much as to this note.

Fourth. Because it is not averred that at the time of such representation by plaintiff he, the plaintiff, was aware that he had not the interest which he represented himself to have, or that he knew he could not procure said Ruthven to assign.

Fifth. Because it is not averred that there was not any other consideration for defendant's making or paying the note.

The demurrer was argued during this term. Dalton, in support of the demurrer: That plaintiff is only averred to have represented that he had the right, title and interest, and not that he fraudulently made such representation, which should have been averred in the plea-Pasley v. Freeman, Smith's Leading Cases; Rawlings v. Bell, 1 C. B. 951.

That the amount of £137 10s. is not shewn to be a liquidated sum.

That plaintiff only agreed to give his right, title and interest in the lands, and the plea shews that the defendant got that.

That a partial failure of consideration is no defence when the amount of the failure is unliquidated-Trickey v. Larne, 6 M. & W. 278; Moggridge v. Jones, 14 East 486; Kellogg V. Hyatt, 1 U. C. Q. B. R. 445; Stephens v. Watkinson, 2 B. & Ad. 320.

That the case of Serle v. Waterworth, 4 M. & W. 9, shews that defendant should have averred that there was no other consideration for the note than that stated in the plea.

Read, D. B., contra, contended that the objection of there being no other averment of consideration could only be taken by special demurrer-Lewis v. Cosgrove, 1 Moor & Payne, 79.

He referred to Evans v. Collins, 5 Q. B. 804; Collins v. Evans, 5 Q. B. 820; Gresham v. Postan, 2 C. & P. 540; Betts v. Gibbins, 2 A. & E. 57; Toplis v. Grane, 5 N. C. 636..

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VOL. V.

MACAULAY, C. J., delivered the judgment of the court.

I think the plea bad. I take the rule to be that fraud avoids the security in toto though it pervade the consideration to a partial extent only. If so, it follows that the professing to answer part only of the note pleads matter (if it be a good plea of fraud) which shews it entirely void, and so indirectly answers to the whole note. If not a good plea of fraud, but of failure of consideration only, it is bad for not answering all it professes to answer, for the partial failure relied upon applies to the £250 paid and the other note as well as this.

Further, if fraud and covin be relied upon, it might be pleaded to the whole note in brief terms. And if such fraud be partial only, the defendant should have elected to repudiate the whole transaction, or to adhere to the contract and take his remedy under it, if any, for the partial damage sustained. He cannot adopt it partially and reject it partially, at least in relation to the security. He ought to restore all the consideration received on discovering the fraud, and so rescind the bargain in toto, but cannot adopt what is beneficial and reject that which is not so.

If failure of consideration merely be relied upon the difficulty is, that it affects not only the instrument partially, even as respects such failure, but that the failure in itself is indefinite in this, that all the lands are purchased together at so much an acre, and it does not follow that the want of title to the lot in question constitutes, in comparison with the whole, a partial failure to the specific amount of 158. 9d. per acre; for in fact, it may be worth less, and only purchased together with the lands, some of which might be worth more. If, however, the note was given for the whole purchase money, and the defence was entire failure of consideration as to 200 acres of the land, I am not prepared to say it might not be a good defence, except that being a contract of sale under seal it is probable that in the absence of fraud the defendant would be without remedy at law, unless founded upon the contract itselfKellogg v. Hyatt (1 U. C. Q. B. R. 445), Tuck v. Tooke (9 B. & C. 437), Campbell v. Fleming (1 A. & E. 40), Chitty on Bills, 72.