table right to a part of the proceeds of the note when collected.146

§ 3547. Want of consideration. A plea of want of consideration, in an action on a bill of exchange, must, besides showing the circumstances, distinctly allege that there was no other consideration than that mentioned.147 Under an answer merely averring that the note was void for want of consideration, and that the plaintiffs are bona fide holders, the defense of usury, though it appears by the evidence on the trial, is not available.148 A partial failure of consideration can not be pleaded in bar of an action upon a note given for the purchase money of land.149 In an action upon a promissory note, want of consideration is a legal defense, and the defendant does not make a case for equitable relief by averring said legal defense affirmatively, and praying that the note be delivered up and canceled. If there be any circumstances which show a right to equitable relief, they should be averred.150 In an action on a promissory note against the maker by an indorser after maturity, an allegation in the answer that the consideration received by the defendant for the note was less than the amount stated therein does not constitute any defense.151 In such an action, the defendant may set up any defense which he could have interposed against the assignor, and which existed at the time of or before notice of the assignment, but he can not set up a defense or counterclaim which has arisen since the commencement of the action.152

§ 3547a. Consideration

extension of time of payment. In an action upon a promissory note executed in bank, which by its terms is past due, an answer states a good defense when

146 Curtis v. Sprague, 51 Cal. 239. 147 Boden v. Wright, 12 C. B. 445.

148 Mechanics' Bank of Williamsburg v. Foster, 44 Barb. 87; S. C., 19 Abb. Pr. 47; S. C., 29 How. Pr. 408.

149 Reese v. Gordon, 19 Cal. 147. Stock in a corporation being an unnegotiable security, as to which there is no implied warranty, an answer in an action on a promissory note given for the purchase of shares of such stock, which pleads failure of consideration only, does not state facts sufficient to constitute a defense. Jones v. Garlington, 44 S. C. 533.

150 Shain v. Belvin, 79 Cal. 262. 151 Wood v. Brush, 72 Cal. 224.

152 Id.; and see § 3364, ante.

it alleges that on the day of the execution of the note and after its delivery the plaintiff and defendants entered into an oral agreement, in consideration of the deposit of certain collateral with the plaintiff, whereby it was agreed that the time of payment of the note should be extended for an additional three months beyond the time expressed upon the face of the note, and that the plaintiff retains said security and refuses to extend the payment or permit a renewal of the note; and that, by reason of such facts, said note is not due and will not be due until the time of the extension agreed upon.' 153

§ 3547b. Bona fide holder-presumption. A plaintiff who holds negotiable paper before maturity is presumed prima facie to be a holder for value and is not obliged to show that he paid value for it, until the defendant, under proper pleadings, offers evidence to overcome this presumption." 154

§ 3547c. Action on note answer raising no issue. A complaint alleged that the plaintiff and defendant together executed a certain note; that subsequently, for a valuable consideration, the defendant agreed to pay the whole of said note; that the defendant failed to pay, and plaintiff was forced and compelled to pay said note. An answer to this complaint denying that the defendant agreed to pay said note to plaintiff; that plaintiff was forced or compelled to pay the same, or that the same was paid by plaintiff for the use and at the request of defendant, raises no issue.155

§ 3547d. Pleas set-off - New Mexico practice. Under New Mexico practice, new matter constituting a cause of action in favor of defendant is available as a set-off, even in an action or a note given in final settlement of account between the parties.156 In assumpsit on a bill of exchange, the proper plea is non assumpsit, a denial under oath of the signature. The plea under oath of non est factum, as required by the statute, is only applicable to instruments under seal.157

153 Commercial Bank v. Hart, 10 Wash. St. 303; and see Stover v. Missimer, 6 Wash. St. 173; 36 Am. St. Rep. 142.

154 Voorhees v. Fisher, 9 Utah, 303; and see Miller v. Ottaway, 81 Mich. 196; 21 Am. St. Rep. 513: Battles v. Laudenslager, 84 Penn. St. 446; Commissioners v. Clark, 94 U. S. 278.

155 Buell v. Burlingame, 11 Col. 164.

156 Staab v. Ortiz, 3 N. Mex. 53.

157 Luna v. Mohr, 3 N. Mex. 56.

SUBDIVISION SECOND.

ON BREACHES OF CONTRACTS.

CHAPTER I.

ON BUILDING CONTRACTS.

§ 3548. Work not finished, and architect's certificate not obtained.

Form No. 825.

[TITLE.]

The defendant answers to the complaint:

I. That the said work was not completed, in a good and workmanlike manner, on or before the day limited therefor, in the contract set forth in the complaint; but on the contrary, the said work on that day, and from thence to the commencement of this action, was and still is incomplete and unfinished.

II. That no certificate from the said architect, that the said work had been completed to his satisfaction, was obtained by the plaintiff before this action.

§ 3549. Counterclaims. Plaintiff sues for balance due on a contract for erecting a building, and a small sum for extra work. Defendant seeks to offset a claim for two and one-third months' rent lost by him, because of the neglect of plaintiff to finish the building within the time specified in the contract, defendant having, at the date of the contract, leased the building to responsible tenants, the lease to take effect from the time named in the contract for its completion; it was held that defendant can not offset his rents, because the circumstances show that the contract was modified by the parties as to the time for the completion of the building. The architect's certificate is for the benefit of the owner, and may be waived by him, at his option, and other proofs of the required fact ac1 McGinley v. Hardy, 18 Cal. 115.

cepted. If a contract provides that the contractor shall not deviate from the written contract, nor receive pay for extra work, unless a written order for the same is signed by the engineer, the contractor can not recover for extra work done on the verbal order of the engineer, even if the contract declares that the engineer may direct alterations in and additions to the work. That the work was done in an unworkmanlike manner must be specially set up in the answer.*

The defendant answers to the complaint:

I. That at the time fixed by the agreement referred to in the complaint, the plaintiff was not ready or willing, or in a condition, to receive the merchandise mentioned in the said agreement [or any part thereof].

§ 3551. Detention occasioned by misconduct.

No demurrage

can be recovered by an owner for a detention occasioned either by the misconduct of the master, for which the owner alone was answerable, or to avoid danger, and not by any misconduct or any breach of covenant by the charterer.1

2 Blethen v. Blake, 44 Cal. 117.

3 White v. S. R. & S. Q. R. R. Co., 50 Cal. 417. If there has been any variation from the terms of the contract, in the progress of the work, by consent of the parties, that fact should be averred, and the performance of the contract as varied. O'Connor v. Dingley, 26 Cal. 11. As to time in building contract, see Front St. M. & O. R. R. Co. v. Butler, 50 id. 574.

4 Kendall v. Vallejo, 1 Cal. 371; Piercy v. Sabin, 10 id. 22; 70 Am. Dec. 692; Laraway v. Perkins, 10 N. Y. 371.

1 Hooe v. Groverman, 1 Cranch, 214.

The defendant answers to the complaint:

That he did not covenant or agree with the plaintiff as alleged, or at all.1

The defendant answers to the complaint, and alleges: That the defendant duly performed said covenant [or all the conditions of said contract] on his part; and [here state performance, pursuing the words of the covenant, if it be in the affirmative; and stating particular acts, if it be done in the alternative, in any case where this can be done without too great prolixity].

§ 3554. Assignment. A plea alleging an assignment of a covenant to pay rent by the plaintiff to a third person should aver the form of the assignment, whether verbal or in writing.2

§ 3555. Counterclaim. In an action at law to recover damages for failure to comply with the covenant to indemnify plaintiff against liabilities, the defendant can not set up, as a counterclaim, demands which were matters of partnership between the parties.3

1 Under a plea of non est factum to an action of covenant, it is competent to show a variance between the deed offered in evidence and that declared on. Treat v. Brush, 11 Mo. 310. What defenses are admissible in actions of covenants, see Wilder v. Adams. 2 Woodb. & M. 329; United States v. Clarke, Hempst. 315: Gill v. Patton, 1 Cranch C. C. 143; Wise's Ex'r v. Resler's Ex'x, 2 id. 182: Scott v. Lunt, 3 id. 285; Kurtz v. Becker, 5 id. 671.

2 Thomas v. Cox. 6 Mo. 506.

3 Haskell v. Moore, 29 Cal. 437.