Cook and another against Mix, 11 Conn. 432

Bissell, J. The decision of the judge on the circuit, rejecting the testimony of Mrs. Parker, is urged as one reason why the rule, in this case, should be made absolute. The only question, on this branch of the case, is, whether the witness offered had an interest in the event of the suit. And whether she had such an interest, was a question of fact, to be determined on the evidence before the court. It is claimed, in the first place, that the judge mistook the law, in not submitting this question to the jury: And this strange claim has been gravely urged before this court.

It is sufficient to observe, that the claim is as unfounded as it is novel: that: it has no support, either in principle or authority ; and is utterly incapable of being reduced to practice. It is insisted, in the next place, that the judge mistook the evidence, and improperly decided, that the witness was interested. If she was the owner of the note, she was clearly incompetent. Does the evidence spread upon the record prove that fact? We are clearly of opinion, that the memorandum on the back of the note, in connection with the other testimony in the case, points to her as the owner.

And this being in the hand-writing of Ephraim Cook, the acting administrator, it is an admission by the party, which, as against him, must be taken to be true. Bill v. Porter, 9 Conn. Rep. 13. Pierce v. Chase, 8 Mass. Rep. 487. Bauerman v. Radenius, 1 Term Rep. 663. 2 Stark. Ev. 42. As the judge who presided on the circuit, has placed this question upon the record, we have considered it: At the same time, we wish it to be understood, that we by no means admit the right of a party to reverse the decision of a judge, while that decision is founded entirely on facts submitted to him.

The only remaining question arises upon the charge to the jury. It was claimed on the trial, and not denied, that the note in question was given for a piece of land, belonging to the estate of Joseph Hull, deceased, and sold to the defendant, by the administrator. And it was admitted, that the deed from the administrator to the defendant, was utterly void, and conveyed no title whatever. And it was further admitted, that a part of the purchase money had been paid by the defendant.

On these facts, it was insisted, on the part of the defendant, that there was a total failure of consideration ; and therefore, there could be no recovery on the note. And it was further insisted, that if not a total, there was at least a partial failure of consideration :-that the defendant had already paid more than the consideration received ; and on that ground there could be no recovery. It was denied, on the part of the plaintiff, that there was either a total or partial failure of consideration; the covenants in the deed being a sufficient consideration for the note.

But admitting there was a partial failure, it was insisted, that this could not be set up, either as an answer to the action, or in reduction of the damages. On these conflicting claims, the court charged the jury, that the covenants in the deed formed a consideration for the note; but that the deed itself was insufficient to convey any title; and that when there was a sale with warranty, and no title was conveyed, the party might show a failure of title to reduce the damages; and if the jury found that the defendant had already paid more than the value received, they might find a verdict in her favour.

The charge placed the case on grounds most favourable to the plaintiffs; and they have no reason of complaint. For, in our opinion, the judge would have been justified in instructing the jury, that there faeing an entire failure of title, there was also a total failure of consideration. We do not assent to the ' proposition, that the covenants in the deed formed any part of the consideration for the note. What, it may be asked, is to be understood by a total failure of consideration ?

It is very obvious, that when the party does not get that, which, by the terms of the contract he was to receive, and for which his note is given, the consideration of the note fails, and fails wholly. This precise point was decided, by the supreme court of the state of New- York, in Frisbee v. Hoffnagle, 11 Johns. Rep. 50 ; and we think decided on principle.

The court there say “ To allow a recovery in this case, would lead to a circuity of action : for the defendant, on his failure of title, would be entitled immediately to recover back the money" On a sale of personal property, there is always an implied warranty of title. But it turns out, that the vendor has no title. Was it ever supposed, that he could recover the purchase money, and turn the vendee over to his remedy on the warranty ? And is there any well founded distinction between a sale of real estate with covenants, and a sale of personal property with warranty ? We suppose not.

And we suppose it to be perfectly well settled, that where a total failure of consideration is shown, it is an answer to the action. This view of the case renders it unnecessary to determine, whether upon the ground assumed, the charge is correct;-or whether, admitting that the covenants in the deed do form a consideration for the note, a failure of title may be shown, to reduce the damages. As, however, the question has been made, and discussed, the expression of an opinion upon it, although not necessary, may be very proper;-and the more especially, as we entertain no doubt upon the point.

The charge, in our opinion, is vindicable, both on the ground of authority and principle. For whatever opinions may have, formerly, been held on this subject; and whatever may have been the decisions in some of the states ; we suppose it to be the settled doctrine in Connecticut, that a partial failure of consideration may be shown to the point of damages. In the case of Moore v. Ellsworth, 3 Conn. Rep. 481., the principle is adopted, in the most unqualified terms. See also Barkhampsted v. Case, 5 Conn. Rep. 528. Lawrence v. The Stonington Bank, 6 Conn. Rep. 521.

Such also is the rule in some of the neigh-bouring states. Spalding v. Vandercook, 2 Wend. 431, Stein-hauer v. Whitman, 1 Serg. & Rawle, 438. Hart v. Porter, 5 Serg. & Rawle, 204. Adams v. Wylie & ux. 1 Nott & McCord, 78. Jones v. Scriven, 8 Johns. Rep. 453. The Phœnix Insurance Company v. Fiquet, 7 Johns. Rep. 385. Miller v. Smith, 1 Mason, 437. Taft v. Montague, 14 Mass. Rep. 282. It may, also, now be considered as a well settled rule, in England, that on a sale of personal property with warranty, a partial failure of consideration may be shown, in reduction of damages. Fisher v. Samada, 1 Campb. 190. Lomi v.

Tucker, 4 Carr. & Payne 15. (19 Serg. & Lowb. 255.) Germaine v. Burton, 3 Stark. Ca. 32. (14 Serg. & Lowb. 152.) Okell v. Smith, 1 Stark. Ca. 107. Cutler & al. v. Close, 5 Carr. & Payne, 337. De Sewhanberg v. Buchanan, Id. 343. (24 Serg. & Lowb. 348. 352.) Street v. Blay, 2 Barn. & Adol. 456. (22 Serg. & Lowb. 122.) King v. Boston, 7 East 481. n. Tomlinson v. Day, 2 Brod. & Bing. 680. (6 Serg. & Lowb. 315.) 2 Stark. Ev. 644. It has already been remarked, that there is no well grounded distinction between a sale of personal property, with warranty, and that of real estate with covenants.

The same reason exists for the application of the rule, in the one case, as in the other. And if a vindication of the rule were necessary, it might be remarked, that it is founded in the highest reason and justice. Why is it, that a total failure of consideration is an answer to the action ? Because the law does not permit one man to recover money of another, which, by a cross-action, might be immediately recovered back. And does not the same reason apply, as well where there is a partial, as where there has been a total failure of consideration ? But it is unnecessary to enter upon a vindication of the rule.

It is sufficient, that we find it settled, by a course of adjudications, which can neither be overruled nor shaken. The consequence is, that the rule in this case, must be discharged. The other Judges concurred in this opinion. New trial not to be granted.