also been held to apply in an action where the note had been assigned by an indorsement in blank.52 And, where the purchaser of an account procures a note for the indebtedness in the name of his assignee who indorses the note to the purchaser of the account, the indorsement is without consideration, and the indorser may defend, in an action by the indorsee, on the ground of want of consideration, as the indorsement transfers merely the legal title to the note.53 But it is no defense by an accommodation indorser that he received no consideration for his indorsement, where the plaintiff is a holder for value.54 $ 343. Partial want of consideration.—The principle that in an action between the original or immediate parties to a bill or note the consideration may be inquired into applies where the consideration is less than the amount of the bill or note, and in such case no recovery can be had beyond the sum actually paid;55 and judgment case the plaintiff had accepted the note which was transferrable by delivery without the defendant's indorsement and the indorsement subsequently obtained was without consideration and the parties being immediate parties the defense was held good); Hamburger v. Miller, 48 Md. 317 ("That in an action by the holder of negotiable paper against the immediate indorser, the title of no innocent third party intervening, it is always competent for the defendant to show, by parol evidence, either the want of consideration as between himself and the plaintiff, or that the indorsement was procured by fraud, or that it was made upon some special trust, or for a special purpose, as to an agent to enable him to use the paper or the money in some particular way, or to make collection, or have the paper discounted, for the benefit of the principal; or that the note was indorsed and delivered to the plaintiff to be used only upon some express condition that has not been complied with"); Arpin v. Owens, 140 Mass. 144, 145, 3 N. E. 25, quoting Byle on Bills (6th Am. ed.) 206; Nes V. son v. Millen, 205 Mass. 515, 91 N. E. 995; Boatmens Bank St. Louis Union Trust Co. (Mo.), 205 S. W. 629; Martin v. Kercheval, 4 McLean (U. S.) 117, Fed. Cas. No. 9163; National Bank of Rising Sun v. Brush, 6 Fed. 132, 10 Biss. 188, where the indorsement was for convenience and without consideration. An indorsement of a note at or prior to its execution and delivery is supported by credit given the maker. Bank of Morgan City v. Herwig, 121 La. 513, 46 So. 611. But where indorsement is made after execution and. delivery, a new consideration is necessary. Funk v. Hossack, 129 Ill. App. 421. 52 Parker v. Morton, 29 Ind. 89. 53 Sawyer State Bank v. Sutherland, 36 N. Dak. 493, 162 N. W. 696. 54 Eaves v. Keeton, 196 Mo. App. 424, 193 S. W. 629. 55 Lawrence v. Stonington Bank, 6 Conn. 521; Wilson v. Ellsworth, 25 Nebr. 246, 41 N. W. 177, holding that consideration may be inquired into and judgment rendered for the sum actually due. rendered for the sum actually due, that is, an objection to a note that there is only a partial want of consideration may be sustained, but it affects the note with nullity only pro tanto.56 A partial want of consideration may therefore be relied on as a defense between the original parties.57 Again, "whenever the defendant is entitled to go into the question of consideration he may set up the partial as well as the total want of consideration."58 And want of consideration may be pleaded to a part as well as the whole of a cause of action when limited to that part.59 If an unjust claim is added to a note given in settlement of a balance found due on adjustment of mutual accounts, such note is without consideration and void as to the amount added.60 So a note may be without consideration as to a part of the matters wrongfully or not properly included therein. In a Massachusetts case the court states the following rule: If a note is taken for two distinct liquidated sums, consolidated, and the consideration had been wholly wanting, or wholly failed as to one, the note, as between the original parties, and all who stand in such relation as to allow the defense of want of con 56 Sawyer v. McLouth, 46 Barb. (N. Y.) 350, citing Story on Prom. Notes, § 187. When there is not a partial want of consideration within the Code, § 1806. See Griffin v. Simons, 61 Tenn. (2 Baxt.) 19. As to partial want of consideration, see Klein v. Keyes, 17 Mo. 326, a case of a partnership note given by a partner, and the defense was that the note was not a partnership transaction, and that only part of the consideration was due on account of the firm and the balance for a debt not growing out of the partnership business, and that such fact was known to the plaintiff. 57 Beall v. Pearre, 12 Md. 550; Sharp v. Sharp, 4 Ohio App. 418. A partial want of consideration can be shown if properly pleaded as a defense pro tanto to a negotiable instrument in the hands of the original payee, or of a party standing in his shoes. Brown v. Roberts, 90 Minn. 314, 96 N. W. 793. Evidence of partial want of con sideration is not admissible unless notice of such defense shall be given. Hubbard v. Freiburger, 133 Mich. 139, 94 N. W. 727, 10 Det. L. N. 123; Comp. Laws, $$769, 828 (Comp. Laws 1915. § 6069). 58 Daniel on Negot. Inst. (5th ed.). $201. 59 Moore v. Boyd, 95 Ind. 134. 60 Briscoe v. Kinealy, 8 Mo. App. 76. 61 Bean v. Jones, 8 N. H. 149. In this case a creditor charged his traveling and other expenses incurred on a journey made for the purpose of collecting a debt and included them in a new note given by the debtor. A. B. Hunter & Co. v. Sherron, 176 N. Car. 226, 97 S. E. 5. Where two persons made separate purchases of the same kind of goods, and both purchasers were induced to sign a note for the combined amount of both purchases. there was a partial want of considera. tion as to each maker, sideration, may be apportioned by the court and found good in part and void in part and the holder be permitted to recover accordingly, and where the parts of a bill are divisible, making an aggregate sum and as to one liquidated and definite part there is a valuable consideration and as to the other part there is no consideration, the bill as such may be apportioned and the holder may recover for such part as was founded on a good consideration. Want of consideration, therefore, either total or partial, may always be shown by way of defense. Where the note is not given upon any one consideration, which, whether good or not, whether it fail or not, goes to the whole note at the time it was made, but for two distinct and independent considerations, each going to a distinct portion of the note, and one is a consideration which the law deems valid and sufficient to support a contract and the other not, there the contract shall be apportioned and the holder shall recover to the extent of the valid consideration and no further.62 The provision of the Uniform Negotiable Instruments Act, making "partial failure of consideration" a defense pro tanto, does not, in an action between the original parties, exclude the defense of "partial want of consideration."63 "64 § 344. Total failure of consideration-Defense between original or immediate parties.-Again, we are reminded of the provision of the Negotiable Instruments Act that "Absence or failure of consideration is a matter of defense as against any person not a holder in due course." Thus, it is well settled rule as between original or immediate parties to a bill or note, or negotiable paper generally, that in an action. thereon an entire or total failure of consideration constitutes a good defense.65 And such defense is available in an 62 Parish v. Stone, 31 Mass. (14 Pick.) 198, 25 Am. Dec. 378. See also Washburn v. Picot, 14 N. Car. 390, where it is said that if a part of a contract arises on a good consideration and part on a bad one, it is divisible, but otherwise as to the security, that being entire. This statement, however, was made in connection with a consideration of the difference between want and failure of consideration. 63 Negot. Inst. Act, art. "Form and Interpretation of Negotiable Instruments," § 28. Sharp v. Sharp, 4 Ohio App. 418. 64 Negot. Inst. Act, art. "Consideration of Negotiable Instruments," § 28. State v. Greenville Bank (Mo. App.), 187 S. W. 597; Ferguson v. Netter, 141 App. Div. 274, 126 N. Y. S. 107. 65 Tatum V. Commercial Bank & Trust Co., 185 Ala. 249, 64 So. 561; Ozark Diamond Mines Corp. V. Townes, 117 Ark. 552, 174 S. W. 151; Estudillo v. Aguirre, 66 Cal. xvii, 5 Pac. 109 (in this case a note was given in part for a definite sum innocently represented to have been fixed, allowed and determined by the probate court for services as guardian of defendant and the allowance had not been made, and this was held to constitute a failure of consideration to the extent of the amount of the note); Russ Lumber & Mill Co. v. Muscupiabe Land & Water Co., 120 Cal. 521, 52 Pac. 136, 65 Am. St. 158; Mills v. Gilpin, 2 Harr. (Del.) 32: Pyle v. Gallaher, 6 Penne. (Del.) 407, 67 Atl. 197, 75 Atl. 373; Odlin v. Stuckey, 76 Fla. 42, 80 So. 291; Davis v. Leighton, 80 Fla. 594, 86 So. 564; Whitt v. Blount, 124 Ga. 671, 53 S. E. 205; Capps v. Smith, 3 Scam. (Ill.) 177; Winkelman v. Choteau, 78 Ill. 107; Sturges v. Miller, 80 II. 241; Winnemann v. Oberne, 40 Ill. App. 269; Moore v. Boyd, 95 Ind. 134; Shireman v. Second Nat. Bank, 72 Ind. App. 256, 124 N. E. 712; George v. Gillespie, 1 G. Greene (Iowa) 421 (so under the Rev. Stat., p. 453, §§ 5. 6); Blood v. Northup, 1 Kans. 28; Long-Bell Lumber Co. v. McCray Band Co., 89 Kans. 788, 132 Pac. 992; Coyle v. Fowler, 3 J. J. Marsh. (Ky.) 472; Kernion v. Jumonville de Villier. 8 La. 547; Byrd v. Craig, 1 Mart. (N. S.) (La.) 625; Beall v. Pearre. 12 Md. 550; Ingersoll v. Martin, 58 Md. 67, 42 Am. Rep. 322; Morgan v. Cleaver, 130 Md. 617, 101 Atl. 610; Arpin v. Owens, 140 Mass. 144, 3 N. E. 25, quoting 1 Byle on Bills (6th Am. ed.) 206; Kelley v. Guy, 116 Mich. 43, 74 N. W. 291; Hubbard v. Freiburger, 133 Mich. 139, 94 N. W. 727, 10 Det. L. W. 123; Comp. Laws. §§ 709, 828 (Comp. Laws 1915. § 6069); Horner v. Townsend, 208 Mich. 612, 175 N. W. 385; Warner v. Schultz, 74 Minn. 252, 77 N. W, 25; Hamer v. Johnson, 5 How. (5 Miss.) 698; Stigler v. Anderson (Miss. 1893), 12 So. 831; Harwood v. Brown, 23 Mo. App. 69; Patt v. Leavel, 161 Mo. App. 242, 143 S. W. 833; Newburg State Bank v. Heflin, 189 Mo. App. 292, 175 S. W. 297; Dixon v. Miller, 43 Nev. 280, 184 Pac. 926; Sawyer v. Chambers, 43 Barb. (N. Y.) 622, 44 Barb. (N. Y.) 42; Sawyer v. McLouth, 46 Barb. (N. Y.) 350; Chase v. Senn, 36 N. Y. St. 36, 13 N. Y. S. 266; Britton v. Hall, 1 Hilt. (N. Y.) 528; American Boiler Co. v. Foutham, 50 N. Y. S. 351; Union Bank v. Fleitmann, 168 App. Div. 171, 153 N. Y. S. 929; Schultze v. Cohen, 156 N. Y. S. 610; Washburn v. Picott, 14 N. Car. (3 Dev.) 390; Loffland v. Russell, Wright (Ohio) 438; Zebold v. Hurst, 65 Okla. 248, 166 Pac. 99, L. R. A. 1917F, 579; Sayre v. Mohney, 30 Ore. 238, 47 Pac. 197; Barnett v. Offerman, 7 Watts (Pa.) 130; Shapiro v. Rosenstein, 65 Pa. Super. Ct. 273; Commercial Security Co. v. Donnald Drug Co., 110 S. Car. 353, 96 S. E. 529; Turley v. Bartlett, 57 Tenn. (10 Heisk.) 221; Branch v. Howard, 4 Tex. Civ. App. 271, 23 S. W. 478; Gillean v. First State Bank of Barry (Tex. Civ. App.), 219 S. W. 896; Stone v. Peake, 16 Vt. 213; Hamilton v. Ramage, 89 Wash. 649, 155 Pac. 151; Gross v. Bennington, 52 Wash. 417, 100 Pac. 846; Scudder v. Andrews, 2 McLean (U. S) 464, Fed. Cas. No. 12,564; Hoopes v. Northern Nat. Bank, 102 Fed. 448; Negot. Inst. Law, art. "Consideration of Negotiable Instruments," § 28. Hilliard v. Lyons, 180 Fed. 685. See Jones v. Swan, 6 Wend. (N. Y.) 589. In the case of a note under seal it is held that failure of consideration may be pleaded, whether or not want may be. Slaton v. Fowler, 124 Ga. 955, 53 S. E. 567. The consideration of a note given for a broker's commission, held to have failed, where the land contract was forfeited for failure to make payments on the purchase action by one claiming under the payee, who is not a holder for value.66 But failure of consideration is not a defense in an action. price. Lewis v. Rayburn, 190 Ill. App. 539. The fact that a note is under seal does not bar the defense of failure of consideration in an action of the note. Toller v. Hewitt, 12 Ga. App. 496, 77 S. E. 650. The consideration of a note executed for stock subscribed for failed upon failure to organize a corporation. Pierik v. Mueller, 201 I11. App. 108. A note given to a university for a scholarship benefit of the maker's granddaughter was not void for failure of consideration because of the consolidation of the university with a college, and the exclusion of women from the consolidated institution, where the granddaughter received several years' benefit from the scholarship and was not barred by the rules of the consolidated univeristy or the consolidation agreement. Miller v. Central University (Ky.), 112 S. W. 669. The defense of failure of consideration can not be made where the maker has received and retained part of the consideration. Daniels v. Englehart, 18 Idaho 548, 111 Pac. 3. If the performance of an undertaking by the payee and payment by the maker are to be concurrent acts, the failure of the payee to perform is failure of the consideration for the note, and releases obligation of the maker. Powers Regulator Co. v. Hoffmann, 169 Ill. App. 657. Where, after the purchaser of land had given a check to the vendor's agent for the purchaseprice, the agent materially alters the deed without the knowledge of the vendor or the purchaser, the consideration of the check failed, and such failure is a defense in an action on the check by the agent. Dorwart V. Hockett, 103 Nebr. 651, 173 N. W. 596. The fact that a note contained a false recital that it was secured by a vendor's liens, does not estop the makers from asserting the failure of consideration, as against the assignee after maturity. Hill v. Jones Lumber Co. (Tex. Civ. App.), 178 S. W. 28. A note payable to order, which the payee sells and delivers before maturity without indorsement, is subject to the defense of failure of the consideration as to the payee. Dorris v. Farmers & Merchants Bank, 144 Ga. 233, 86 S. E. 1093. In action on a note given for the purchase-price on personal property, by one not a holder in due course, the maker may set up in defense the breach of an oral warranty made at the time of the sale. Anthony v. Cody, 135 Ga. 329, 69 S. E. 491. Where the executory consideration for a note is a promise to perform certain services, it is a good defense in action on the note by the payee, that such services have not been performed, although the time for their performance has expired. McCranie v. Cason, 79 Fla. 857, 85 So. 160. Where a note is given in consideration of the payee surrendering prior notes, the failure to surrender such prior notes is a defense to an action on the subsequent note by the payee. Holley v. Smalley, 269 Fed. 694. Where purchase-money notes were delivered to the mortgagee of the property for the purpose of facilitating the sale of the property, the fact that the maker and purchaser was subsequently evicted by foreclosure of the prior mortgage is no defense to an action on the note. Commercial-Germania Trust & Savings Bank v. Russell, 148 La. 334, 86 So. 831. 66 Tatum V. Commercial Bank & Trust Co., 185 Ala. 249, 64 So. 561; Wilson v. Carter, 4 Ga. App. 349, 61 S. E. 494; Pidcock v. Merchants Nat |