Morrow v. Hanson , 9 Ga. 398 ( 1851 )

By the Court.

Warner. J.

delivering the opinion.

The only point in this case is, whether in a suit upon a promissory note by the plaintiff, the defendant may show, by way of defence, a warranty of the property for which the note was given, and that the consideration had totally failed, the warranty being by farol, and more than four years having elapsed from the time of making such parol warranty. The general rule of law is, that where there is a total failure of the consideration, and the defendant has derived no benefit from the contract, or none beyond the amount of money which he has already advanced, such total failure of consideration may be shown in bar of the action. 2 Greenleafs Ev. §113, 136. So long as the plaintiff has the legal right to sue the defendant, he may defend himself by showing he has no cause of action against him. The note of the plaintiff imports a consideration on its face, but it is competent for the defendant to show, either that there was no consideration, or that the consideration for which it was given has totally failed; in other words, that the plaintiff has no cause of action against him,; and it is not competent for the plaintiff to insist upon the Statute of Limitations, in order to avoid the defendant’s defence, when he is seeking to enforce the contract against him. So long as the plaintiff has the legal right to sue on the contract, the defendant has the co-relative right to defend it.

Let the judgment of the Court below be reversed. ,