Mills v. Gilpin , 2 Del. 32 ( 1835 )

The Court

charged the jury that the defendant, by his acceptance, made himself liable to pay the amount, and that a pattial failure of the consideration could not be set up as a defence to an action on the bill, but must be the subject of a cross action. But if there is fraud-in the transaction; if from the inadequacy of the value of the article sent, its total dissimilarity from the article ordered, or from other circumstances, the jury are satisfied that a fraud was intended to be practised by the seller on the buyer, this would vitiate the whole contract, and might be a proper defence to the action ; and for the purpose of showing fraud, it is competent for the defendant in an action on the bill to give in evidence the bad quality of the article. And if there has been a total failure of the consideration,, that is, if the coal forwarded was worth nothing to the defendant, or not worth more than the freight which he had to pay, the verdict in that case ought to be for the defendant.

The plaintiff had a verdict for a part of the amount claimed.