¶1The opinion of the court was delivered by
¶2The exceptions show that upon the evidence, on the part of the defendants themselves, the consideration of the note in suit was a deed of the right of the patent for Austin’s patent nailless horse shoe for the town of Walden from one Russell, and the agreement of Russell to furnish the defendants one hundred pounds of such horse shoes ready made, at the depot in St. Johns-bury, within a few weeks, at sixteen cents per pound.
¶3*66The testimony of the defendants did not tend to show that the patent was entirely worthless, and it cannot be presumed that it was not of some value.
¶4Russell did not fulfil his agreement to deliyer the horse shoes, and as between him and the defendants that part of the consideration of the note failed.
¶5The defendants do not appear to have ever offered to reconvey to Russell the right to the patent that they acquired of him.
¶6To the extent of that right the consideration of the note, as between the defendants and Russell, has not failed.
¶7The case does not disclose how much of the consideration was for Russell’s agreement, nor how much of it for the right to the patent.
¶8The extent of the failure of the consideration, as between the original parties, is, therefore, not a subject capable of definite computation, but rests in unliquidated damages that could not be ascertained without a trial.
¶9Under the act of the legislature upon this subject, passed in 1867, the defendants could avail themselves of this partial failure of consideration by way of defence to an action upon the note in favor of the original payee 'Russell. But the act of 1867 is, by its terms, expressly confined to actions upon notes between the original parties; therefore this case stands just as it would have stood without that act. Without that act, the failure being only partial, and that part not being capable of definite ascertainment, the defendants could not avail themselves of it in an action upon the note in favor of the original payee even, but would have to resort to a cross action to recover their damages for the nonfulfillment of the agreement.
¶10The plaintiff, even if he had taken the note when overdue, and with full notice of the original payee, would, of course, stand as well against the defendants as the payee could stand.
¶11These considerations entitle the plaintiff to recover upon the right acquired by being the owner and bearer of the note, without relying upon any right that Osgood may have had to enforce the note that the payee did not have.
¶12*67The plaintiff being entitled to recover without reference to any peculiar right that Osgood had, all necessity for any consideration of what right the plaintiff acquired by purchasing of Osgood, who was an innocent holder, that he would not have acquired if Osgood had had .all the notice that the plaintiff had, is obviated.
¶13Judgment is affirmed.