Wentworth v. Dows

Colt, J. In an action upon a promissory note, the defendant is permitted to» allege and prove in defence that which was formerly only the subject of a cross action. Thus breach of warranty or fraud in the sale of personal property may be given in evidence, when specially set up in the defendant’s answer by way of recoupment. Harrington v. Stratton, 22 Pick. 510. Hodgkins v. Moulton, 100 Mass. 309. [16] The only defence which is here properly pleaded is want of consideration alleged to have been caused by imperfections in certain marble cases sold by the plaintiffs to the defendants, to be fitted up for soda fountains by the latter, and paid for by the note in suit. At the trial there was evidence that the plaintiffs under a verbal contract with the defendants made six marble cases, which were delivered from time to time, and that the note in suit was given, when the last two cases were delivered, in payment for those two only, the other cases having been previously delivered and paid for. There was also evidence that all the eases were imperfect, and not as good as specified in the verbal contract. The judge was asked to instruct the jury “ that if the jury find that the six cases were an entire contract, and that a part of the cases were included in the settlement for which the note in question was given, then the jury were to consider the damage on the whole contract.” This instruction was properly refused, in view of the defence set up. The delivery of the property furnished a good consideration for the note. There is no fraud or breach of any special agreement, or of any warranty express or implied, alleged in the answer, and the defence which the request assumes is not open. The purchaser takes his risk in a sale of property without warranty, false representation, or other fraud, amounting to something-more than mere commendations of the seller. The question, “ How much less in value by reason of these alleged imperfections the whole apparatus was worth ? ” put to the witness Collins, was properly excluded for the reasons above given. Where there has been fraud or breach of warranty, the buyer may indeed recover all demands which are the natural and direct result thereof, and that may include something more than the difference between the actual value and the price paid. That rule is not to be applied to the facts, which the defendants are allowed to rely on here. Exceptions overruled.