(l) Thus, in Adlard v. Booth, 7 C. & P. 108, it was held, that where a printer has been employed to print a work, of which the impression is to be a certain number of copies, if a fire break out and consume the premises before the whole number has been worked off, the printer cannot recover anything, although a part has actually been delivered. While in Cutler v. Close, 5 C. & P. 337, where a party contracted to supply and erect a warm air apparatus, for a certain sum, it was held, in an action for the price (the defence to which was, that the apparatus did not answer), that, if the jury thought it was substantial in the main, though not quite so complete as it might be under the contract, and could be made good at a reasonable rate, the proper course would be to find a verdict for the plaintiff, deducting such sum as would enable the defendant to do what was requisite. This question frequently arises on special contracts to do certain work, according to certain plans, or certain specifications, and the contract is not strictly complied with. Here is a partial failure of consideration, and the plaintiff, in seeking to recover for the labor and materials expended, will be compelled to deduct for his partial failure, and the defendant may rely upon this in reduction of damages, and is not driven to his cross action. Chapel v. Hickes, 2 Cr. & M. 214. And in such case the plaintiff is not entitled to the actual value of the work, per se, but only the agreed price minus such a sum as would complete the work according to the contract. Thornton v. Place, 1 Man. & R. 218. In the case of Ellis v. Hamlen, 3 Taunt. 53, it was held, that if a builder undertakes a work of specified dimensions and materials, and deviates from the specification, he cannot recover, upon a quantum valebant, for the work, labor, and materials.

(m) Lucas v. Godwin, 3 Bine. N. C. 746, Bosanquet, J. In that case the plaintiff contracted to build cottages by the 10th of October; they were not finished till the 15th. Defendant having accepted the cottages, it was held that plaintiff might recover the value of his work, on a declaration for work, labor, and materials. - The former practice of compelling a party to pay the full sum for specified labor, and then driving him to his cross action if the work was not done according to contract, was alluded to by Parke, B., in Mondel v. Steel, 8 M. & W. 870. In that case, it was held, after mature consideration, that in all actions for goods sold and delivered with a warranty, or for work and labor, as well as in actions for goods agreed to be supplied according to a contract, it is competent for the defendant to show how much less the subject-matter of the action was worth by reason of the breach of the contract; and to the extent that he obtains, or is capable of obtaining, an abatement of price on that account, he must be considered as having received satisfaction for the breach of contract; and he is precluded from recovering in another action to that extent, but no more. See also Chapel v. Hickes, 2 Cr. & M. 214. So in Allen v. Cameron, 3 Tyr. 907, where the plaintiff contracted to sell and plant trees on the defendant's laud, and also to keep them in order for two years next after the planting, it was held, that evidence of non-performance by the plaintiff of any part of his contract, by which the trees had become of less value to the defendant, was admissible to reduce the damages in an action on the agreement for their price, and for planting them. Lord Ellenborough seems to have laid down the just rule on this subject in Farnsworth v. Garrard, 1 Camp. 38. It was there held that where the plaintiff declares on a quantum meruit for work and labor done and materials found, the defendant may reduce the damages, by showing that the work was improperly done; and may entitle himself to a verdict by showing that it was wholly inadequate to answer the purpose for which it was undertaken to be performed.

(n) Although it was formerly held that the only remedy was by cross action, Tye v. Gwynne, 2 Camp. 346; Moggridge v.

Jones, 8 id. 38, yet the party may now resort to the cross action or not, at his election. This subject was examined with much ability and at great Length by Dewey, J., in Harrington v. Stratton, 22 Pick. 510, where it was held, that in an action by the payee against the maker of a promissory note given for the price of a chattel, it is competent for the maker to prove, in reduction of damages, that the sale was effected by means of false representations of the value of the chattel, on the part of the payee, although the chattel has not been returned or tendered to him. And the learned judge, in the course of his opinion, said: " The strong argument for the admission of such evidence in reduction of damages in cases like the present, is, that it will avoid circuity of action. It is always desirable to prevent a cross action where full and complete justice can be done to the parties in a single suit; and it is upon this ground that the courts have of late been disposed to extend to the greatest length, compatible with the legal rights of the parties, the principle of allowing evidence in defence or in reduction of damages to be introduced, rather than to compel the defendant to resort to his cross action. As it seems to us the same purpose will be further advanced, and with no additional evils, by adopting a rule on this subject equally broad in its application to cases of actions on promissory notes, between the original parties to the same, as to actions on the original contract of sale, and holding that, in either case, evidence of false representations as to the quality or character of the articles sold, may be given in evidence to reduce the damages, although the article has not been returned to the vendor." - See also Mixer v. Coburn, 11 Met. 559; Perley v. Balch, 23 Pick. 286; Hammat v. Emerson, 27 Me, 308; Coburn v. Ware, 30 Me. 202; Spalding v. Vandercook, 2 Wend. 431; Drew v. Towle, 7 Foster (N. H.), 412; Albertson v. Hal-loway. 16 Ga. 377. The cases of Scudder v. Andrews, 2 McLean, 564; Pierce v. Cameron, 7 Rich. L. 114; Pulsifer v. Hotchkiss, 12 Conn. 234, and some others, seem, however, not in accordance with this principle. See, however, as to this last case, Andrews v. Wneaton, 23 Conn. 112.

In Vermont it seems to be the law, that the maker of a note cannot avail himself of a partial failure of the consideration, unless he has offered to rescind the contract, (o)

The bargain may, perhaps, be such as to preclude an inquiry into failure of consideration. As if one buys a cargo of corn to arrive, " the quantity to be taken from the bill of lading," and that quantity is paid for, the buyer cannot recover back a part of the price, because the cargo is short, nor could the seller demand more if it went beyond the bill; supposing good faith on both sides. (p) Here, however, if a few bags or bushels only, instead of the cargo bargained for, should arrive, it would seem difficult to hold the buyer for the whole price. Such contracts are like those for the purchase of land, where the contents or dimensions of the lot are stated with the addition of " more or less." The intention being to prevent an unimportant variation from annulling the bargain, or raising new questions; but not to prevent the effect of a failure of consideration, which, though not absolutely complete, and, therefore, strictly speaking, partial and not total, is still so large as to be substantially total.

While it is true that a failure of consideration is a good ground for the recovery of the money paid, it is a familiar and well-settled principle of law, that where a person with full knowledge of all the circumstances pays money voluntarily, and without compulsion or duress of persons or goods, he shall not afterwards recover back the money so paid. (q) But money paid by a mistake of fact which causes an unfounded belief of a liability to pay, may generally be recovered back, (qq) even if the mistake arises from negligence; (qr) but not if the mistake affects only the motives of the party in paying the money, and not his obligation to pay it. (qs)

(o) Burton v. Schermerhorn, 21 Vt. 289.

(p) Covas v. Bingham, 22 E. L. & E. 183; s. c. 2 E. & B. 836.

(q) This rule is well considered in Forbes v. Appleton, 5 Cush. 117. For illustrations of the kind of duress which avoids it, see Preston v. Boston, 12 Pick. 7, and Boston & Sandwich Glass Co. v. Boston, 4 Met. 181. Also Fulham v. Down, 6 Esp. 26, n; Hills v. Street, 5 Bing. 37; Snowdon v. Davis, 1 Taunt. 359.

(qq) Cox v. Prentice, 3 M. & S. 344; Dails v. Lloyd, 12 Q. B. 531; Townsend v Crowdy, 29 L. J. C. 300; Barber v. Brown, 26 L. J. C. 41; Milnes v. Duncan, 6 B. & C. 671; Standish v. Ross. 3 Exch. 527; Mills v Alderbury Union, 3 Exch. 590.

(qr) Kelly v. Solari. 9 M. & W. 54, 58; Bell v. Gardiner, 4 M. & G. 11; Townsend v. Crowdy, 8 C. B. (n. s.) 477.

(qs) Aiken v. Short, 25 L. J. Exch. 321; Chambers v. Miller, 32 L.J. C. 30; Martin v. Morgan, 1 B. & B. 289.