Chappell v. Brown

The defendant asserted a counterclaim for damages arising from the fact that many of the stones were found to have such projections from their sides, or such irregular surfaces, that they did not conform to the requirements of the construction contract, so that they could not be used in this work without being redressed-. The defendant introduced evidence to show the amount of the expense to which he was subjected in redressing the stones, and also that the stones; were worth less by reason of such defects than they otherwise would have been. The court withdrew this counterclaim from the jury, and,, as some question may arise concerning it on another trial, we wilt briefly refer to it. It does not appear upon what ground this ruling [530] of the court was based, but it is now contended by the respondent that by receiving and using the stones the defendant waived any objection which otherwise he might have had to their quality. If, as the evidence tended to show, the plaintiff, who was engaged in quarrying or manufacturing stone, supplied these stones, on the order of the defendant, for this particular purpose, the contract- being made with reference to the requirements of the construction contract, with the mutual understanding that they were to be applied to that use without further dressing, there would be an implied warranty that they should be reasonably fit for that purpose; that is, such as the construction contract called for. This is a familiar legal proposition. Such a case would be distinguishable from cases of executory sales by sample or by mere description, as well as from cases of sales of specific defined property; and the decisions in Haase v. Nonnemacher, 21 Minn. 486; Maxwell v. Lee, 34 Minn. 511, (27 N. W. Rep. 196;) and Thompson v. Libby, 35 Minn. 443, (29 N. W. Rep. 150,) — cited by the respondent, — would not be applicable. If there was a warranty, either express or implied, that the stones should be such as to conform to the requirements of the construction contract, the defendant might recover damages for breach thereof, even though he received and used the stones. Some assignments of error have not been particularly referred to,' for the reason that they relate to questions which will not be likely to arise upon another trial. Order reversed. .(Opinion published 53 N. W. Rep. 755.)