James S. Jones, Appellant, vs. William Streeter, Appellee, 8 Fla. 83

DuPONT, J., delivered the opinion of the Court. This was an action of assumpsit brought by the appellee against the appellant in the Circuit Court of Hills-borough county. The declaration contained a special count on a promissory note alleged to have been executed and delivered to the plaintiff by the defendant, and also a count on an account stated. To the first count the defendant filed a plea of“ partial failure ” of consideration, and to the second count he filed the plea of nil debit. These pleas were demurred to and the demurrer sustained.

The defendant then filed an amended plea in the following words, to wit: ££ And the said defendant by bis attorney says that the said promissory note was signed and delivered by defendant to plaintiff for and in consideration of a buggy, which the plaintiff fraudulently represented to the defendant, at the time of the sale of said buggy to defendant, that said buggy was whole and sound, and the defendant in fact says that said buggy at the time of said sale was badly broken and wholly unfit for use, ’and this he is ready to verify,” &c.

There was a demurrer likewise to this plea, which was sustained and judgment given for the plaintiff as for the want of a plea. The error complained of is in the overruling of this plea. The plea in this case was evidently intended to raise the defence of a “failure of consideration,” but the facts stated therein (even if they would amount to a defence,) are so defectively set out that we think the Court was right in sustaining the demurrer.

It is true that the plea alleges that the note was given for the buggy, and that the buggy was badly broken and unfit for use at the time of the sale and purchase, but, non constat, that the defendant had not received a benefit from the purchase and indeed full value for the note given by him. By his own showing, the plaintiff had been enabled to sell the buggy to him notwithstanding its dilapidated condition and unfitness for use, and there is nothing in the plea to negative the idea that he had not been equally fortunate in disposing of it for a sound, price.

The plea should have alleged expressly the failure or (under our statute) the partial failure of the consideration for which the note was given, in order to constitute it a good plea. It is defective for the want oí certainty. Let the judgment be affirmed with costs.