¶1The opinion of the court was delivered by
¶2In this case the testimony offered on the the part of the defendant amounts to no defense to the note sued, even upon the defendant’s construction of it, and if the suit were for the benefit of Beckwith.
¶3If the payee of the note were the plaintiff in the action, and it were shown that he had refused to perform the contract on his part, and declined giving any deed whatever, or if he had offered a quit-claim deed when the contract required a deed of warranty, and it had been refused, it might amount to a defense to the note, as a total failure of consideration.
¶4But in the present case both a quit-claim and a warranty deed were offered and accepted, and possession of the land taken, and the title is perfect. And if this were not accepted as full satisfaction, it was still such performance and acceptance as will preclude the defendant from repudiating it. He can now only go for such damage as he has sustained in consequence of the failure of strict performance, which will be merely nominal, if anything, and is not valid as a defense to the note, even to that extent, as has been often decided.
¶5In addition to this the case finds expressly that the note was bona fide, and for full consideration, endorsed to Whitlock before due, and this must exclude all defenses of this character.
¶6Judgment affirmed.