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notice of the defects, as a condition precedent to making his defense. Neither is he, in this case any more than in the other, bound to anticipate and search for defects before using or disposing of the goods. In this case, also, as in the other, the fact that he may have paid part of the price does not debar him from this defense;: nor will the fact that he may not have paid in the manner agreed upon.*

$ 1845. Defense of failure of consideration.- As has been seen in an earlier chapter, the seller may so far fail in the performance of the undertakings on his own part which are conditions precedent to the undertaking of the buyer that the latter when called upon by the former to perform may defend upon the ground that the consideration for his promise has so completely failed as to release him from liability.

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1 Thus, in Tacoma Coal Co. v. Brad- price, he may sue for the difference ley, supra, it is said:

That the ven- between the price paid and the mardee may retain the goods without ket price of the substituted article. notice, and plead breach of warranty Columbian Iron Works v. Douglas in an action by the vendor for the (1896), 84 Md. 44, 34 Atl. R. 1118, 33 L. purchase price, is shown by numer. R. A. 103, 57 Am. St. R. 362. ous authorities (citing Dayton v. 2 Tacoma Coal Co. v. Bradley,supra. Hooglund, 39 Ohio St. 671; Polhemus 3 A partial or complete want of v. Heiman, 45 Cal. 573; Holloway v. consideration may be pleaded to an Jacoby, 120 Pa. St. 583, 15 Atl. R. 487, action on a note for the price of prop6 Am. St. R. 737; Babcock v. Trice, erty, where there has been a breach 18 Ill, 420, 68 Am. Dec. 560; Bag- of warranty. Payment of interest ley v. Cleveland Rolling Mill Co., 22 coupons will not estop the maker of Blatchf. 342, 21 Fed. R. 159).

the note from making this defense. Retention of a machine sold under Huntington v. Lombard (1900), 23 a warranty, in the absence of any Wash. 202, 60 Pac. R. 414. agreement as to its retention or re- 4 A buyer of an engine may de turn, does not prevent the vendee fend an action on his note for the from setting up the warranty by way price by pleading fraudulent repreof counter-claim when sued for the sentations, notwithstanding the fact price. Hooper v. Story (1898), 155 that he failed to give a mortgage on N. Y. 171, 49 N. E. R. 773.

the engine to secure the note accordIf a buyer has by mistake received ing to his agreement. Cash v. Do what he did not buy he may return Long (Ky., 1899), 53 S. W. R. 1037. it or keep it and recoup, when sued 5 Ante, S 831 et seq. for the price; or, if he has paid the

§ 1846. Thus, recalling what has been already elsewhere said, where the goods contracted for are never delivered at all,' or, though delivery were tendered, were not of such kind, quality or condition, or in such quantity, at such place or time, that the buyer was bound to receive them, and he rejected them, or, if delivered, were returned by virtue of an express or implied right to do so, or have become worthless because of the failure of the seller to perform his agreement with respect of them, there would clearly be such an entire failure of consideration as would defeat a recovery by the seller. These matters, as has been so often seen, stand as conditions precedent to the buyer's liability. And the same result would ensue if the seller failed, in such respects, in part only where the contract was entire,+ or pro tanto where it was severable."

$ 1847. - So, as has been seen, where patents sold prove, not simply of little or no value, but void; 6 or notes, bonds, scrip and other similar commercial securities prove not to be genuine;? or the seller is found to have no title to the goods which he has assumed to sell, and the like cases, there is such a failure of consideration as will defeat recovery.

§ 1848. Recovery as for failure of consideration.- And dastly, there are, as has also been seen, many cases in which there has been such a complete and total failure on the part of

1 See, for example, Nash v. Towne 5 See Young Mfg. Co. v. Wakefield (1866), 72 U. S. (5 Wall.) 689.

(1876), 121 Mass. 91; Wheadon v. Olds 2 See, for example, Pope v. Allis (1838), 20 Wend. (N. Y.) 174; Hill v. (1885), 115 U. S. 363.

Rewee (1846), 11 Metc. (Mass.) 268; 3 See Norris v. Harris (1860), 15 Cal. Morgan v. McKee (1874), 77 Pa. St. 226.

228; Richards v. Shaw (1873), 67 Ill. 4 There is a total failure of consid. 222. Or, though originally entire, is eration for notes given for the pur treated by the buyer as severable. chase price of trees where the seller Avery v. Willson (1880), 81 N. Y. 341, agreed to set them out and care for 37 Am. R. 503. them and failed to do so, the result 6 Ante, S 834 being their total loss. A total failure 7 Ante, $ 835. of consideration may be shown under 8 Ante, S 836. the general issue. Perkins v. Brown 9 Ante, SS 838, 839. (1897), 115 Mich. 41, 72 N. W. R. 1095.

the seller to perform that which was a condition precedent to the buyer's liability, that the latter, treating the contract as at an end, may, instead of waiting to be sued, take the initiative on his own part and recover what he has parted with as baring been obtained from him upon a consideration which has failed.

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$ 1849. —Thus, to repeat what has already been stated in earlier sections, if the buyer has paid the price, but the title has failed and he has been divested by the true owner;' or if he has paid for a patent which proves to be invalid;? or if he has paid for commercial instruments, such as notes, bonds, scrip, and the like, which prove not to be genuine, 3— in these and the like cases he may recover his money as paid without consideration.

$ 1850, - So, if the buyer has paid the price in advance, but has never received the goods at all;' or has rejected them wholly, as he had the right to do because they were not such as the contract contemplated;' or if they were not as agreed,

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1 Eicholtz v. Bannister (1864), 17 Bentley (1854), 15 IIL 420; Cleveland Com. B. (N. S.) 708; Ledwick v. Mc- v. Sterrett (1871), 70 Pa. St. 204. In Kim (1873), 53 N. Y. 307; Wilkinson Winn v. Morris (1894), 94 Ga. 452, 20 v. Ferree (1855), 24 Pa. St. 190. S. E. R. 339, seventy dollars was

2 Darst v. Brockway (1842), 11 Ohio, paid for a mule and $1.80 extra for 462.

delivery at another place. No deliv. 3 Frank v. Lanier (1883), 91 N. Y. ery was made at either place. Buyer 112; Wood v. Sheldon (1880), 42 N. J. may recover amount paid, with inL. 421, 36 Am. R. 523; Thompson v. terest. Death of mule after expiraMcCullough (1860), 31 Mo. 224, 77 Am. tion of time within which delivery Dec. 644; Gurney v. Wormsley (1854), was to be made, no obstacle to re4 El. & Bl. 133, 82 Eng. Com. L. 132; covery. Paul v. Kenosha (1867), 22 Wis. 256, 5 Pope v. Allis (1885), 115 U. S. 363. 94 Am. Dec. 598; Terry v. Bissell Where an article delivered does not (1857), 26 Conn. 23.

conform to the description under 4 Nash v. Towne (1866), 72 U. S. which it was sold, the vendee is not (5 Wall.) 689; Smiley v. Barker (1897), bound to accept, and may recorer 83 Fed. R. 684, 55 U. S. App. 125, 25 whatever of the purchase price he C. C. A. 9; Winn v. Morris (1894), 94 has paid. Meader v. Cornell (1895)

, Ga. 452, 20 S. E. R. 339; Dalton v. 58 N. J. L 375, 33 Atl. R 960.

but entirely worthless; or if the agreed article has not been delivered, but another substituted for it, and the latter has been retarned, in these and similar cases there is a total failure of consideration, and the buyer may recover his money. He may likewise do so pro tanto where he has paid for more than he has received."

1 Peterson v. Door, Sash & Lumber 3 Devaux v. Conolly (1849), 8 C. B. Co. (1883), 51 Mich. 86, 16 N. W. R. 640, 65 Eng. Com. L. 639; Wheadon 243; Ripley v. Case (1889), 78 Mich. v. Olds (1838), 20 Wend. (N. Y.) 174; 126, 43 N. W. R. 1097, 18 Am. St. R. Hill v. Rewee (1846), 11 Metc. (Mass.) 428.

268; Devine v. Edwards (1877), 87 III. 2 Howe Machine Co. v. Willie (1877), 177; (1881) 101 IIL 138. 85 IIL 333.

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