Coit v. Schwartz

The opinion 6f the court was delivered by Horton, C. J.: In support of the demurrer -filed by the plaintiffs in this case, it is said, first, that if the defense set forth in the second count of the answer be based on a breach of warranty, it is defective in failing to allege as a fact that the lead paint contracted for was not pure. The allegations [347] upon this point are, that the defendant, “ as soon as she was able, examined the paint and discovered that it was not pure white lead, but was white lead adulterated by other, cheaper and inferior ingredients, and that on the second day of April, 1882, as soon as she discovered the paint furnished was not what had. been contracted for, she notified plaintiffs that she would not accept it, and duly tendered the same back to them.” At the time of the contract concerning the paint' it was at Chicago, in the state of Illinois, and therefore not subject to inspection by Schwartz. Strictly speaking, there was in fact no warranty concerning it. But it is clearly apparent from the allegations that the article delivered was not the article contracted for, and therefore, while neither fraud nor warranty in the strict sense of the law is charged, a condition is set forth, the performance of which is precedent to any obligation upon the vendee under the contract. That is, the existence of the quality of purity, being a part of the description of the thing sold, became essential to its identity, and the defendant was not obliged to receive and pay for an article different from that for which she contracted. (Benjamin on Sales, §§ 600 and 895.) The allegations in the answer that the defendant examined the paint and discovered it was not pure, but white lead adulterated by other, cheaper and inferior ingredients, and that as soon as she discovered that the paint furnished was not what had been contracted for, she notified plaintiffs that she would not accept it, as against the challenge by demurrer are a sufficient charge that the white-lead paint was not pure, and was an article different from that contracted for. II. As to the defense claiming a lien on the lead for freight and cartage paid, we see no good reason why defendant is not entitled to recover therefor. The plaintiffs sent a quantity of lead paint to the defendant, which was not according to the contract of the parties. When received, without knowledge as to the character of the paint, the defendant paid out $36.90 for freight and cartage. (Barnett v. Terry, 42 Ga. 83.) Where the seller ships goods or other articles to a purchas er [348] ordered to be sent to him, who receives the same, paying freight and cartage thereon, and on examination finds that the goods or articles sent are not according to order, and he at once gives notice to the seller of this fact, and that he holds the same subject to his direction, the party shipping is bound for all the freight and cartage paid out. (Rucker v. Donovan, 13 Kas. 251.) III. It is urged that the defendant is not entitled under the allegations of the answer to recoup damages, and that therefore the fourth count is fatally defective. It appears from the answer, that the plaintiffs promised and agreed to sell and deliver to the defendant, at Salina, within thirty days after March 13, 1882, 4,000 pounds of pure white-lead paint, and that the defendant agreed to pay therefor the sum of $220. It further appears that the plaintiffs wholly refused and neglected to comply with the contract, and that at the time when the paint should have been delivered it was worth at Salina 6J cents per pound. The attempt to impose upon the defendant adulterated white lead in place of the article contracted for was no compliance with the agreement, and defendant is entitled to recover the damage she has sustained by the breach of the contract. The case of Hunter v. Lee, 11 Kas. 292, is not applicable here. In that case there was a contract to deliver certain specific cattle. The plaintiff was ready to deliver those cattle, hence he was not in default. By reason of the falsity of his representations he could not compel the defendant to receive the cattle, nor recover damages for his refusal. Here, the contract was to deliver a certain number of pounds of paint, of a given quality. The particular kegs delivered were not those contracted for, and the vendor did not deliver paint of the quality called for by the contract. The ruling and judgment of the district court will be affirmed. All the Justices concurring.