In some states a partial failure of consideration may be used as a partial defense in an action on the contract, even if the consideration is not apportioned and the damages are unliquidated.1 Thus in an action on a single bill given for several fillies, fraud as to their pedigree constituting partial failure of consideration may be set up.2

In other states a partial failure of consideration is not available as a defense to an action on the contract, though it may be the basis of an independent action.3