Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1859-10-26

Opinions OF the Supreme Court OF the
STATE OF Tennessee, at Jackson, April
Term

/ overt0n Pheian.
inns action brought to recover the value Of work
anu hiDor performed. and materials furnished BIZ
the plaintiff, foundry man for Overt0n in buildjns
eerGuh houses IN the city of Memphis Upon the
ual, the defendant offered to proye that nIalnta'
tirsheu me iron-work, including front and sills
tie construction OF certain buildings of defendant in
memphis, that the items in the account s5ed on in
TINS action, were part of theron-,vcrk 50 furnish
ed, that all the work which plaintiff had na,.forroed
and the materials he had furnished for defendant
were to these buildings and under the same con-
tract and that said iron-wor was unszIlfnliv man
utactred and put in said building by the said plan
TN and his agents; that before said work was done
and after said building partially erected tn,
IRON fronts supporting the brick work gave way and
fell by reason of the imperfect and unskilful man
ner IN which the plaintiff had manufactured and
erected said homework, and that after giving plain
TN an opportunity 10 repair the same, defendant
was compelled to pay OUT $500 to have the same
repaired, and that said irOn-wOrk and materials so
done and furnished by the plaintiff unsuited to
the purposes for which they were sold and used
But the Circuit Court refused to allow this evil
dence to go 20 the jury In this think he erred.
1t Is well settled upon common law principles, that
when the defendant has sustained damages by rea-
son of the plaintiffs non-performance of his part of
the agreement sued on, such defendant has the right
TO abate the plaintiffs verdict and recovery by the
amount OF such damages. Porter vs.. Woods. Stack
er q Co., Hum- So Whitaker vs.. Fuller do 4G6.
In these cases it held that the amount Of DANA
OF the claim against him, in such case, viii be the
damages which he would be entitled to recover in a
cross action by him against the plaintiff for the non
performance Of his portion Of the agreement.
Not only so but now by force of the act of 1856
ch II, l. the defendant may not only avail him
self Of the damages to abate extinlsh the plain
ufrs demand against him. but will also be entitled
to Judgment and execution against the plaintiff for
any amount or balance for which he may be found
liable
1t is settled that where goods are ordered and sup
piled, or manufactured for particular purpose,
there is an implied warranty that they reason
ably fit and proper for that purpose. This rule
specially applies IN a contest between the manufac
turer and purchaser Of the article, DOnels0n vs..
Young and Clemens Neigs' report l35, Gritty on
Contracts 45O5, Bng. 335, Story on Contracts, sec.
3, l35.
We think that the proof should have been received.
We not able to perceive from this record, that
any part of the defective work was performed by
Isaac Phelan
If it should turn ont that he did any portion Of it
upon contract uncOnnected with the plaintiff, Of
course to that extent the plaintiff viii not be held
answerable.
The fact that Overton had settled with the plain
tiff, for good part Of the work and taken his re
cepts before it gave and foil does not change the
rule or lessen the plaintiffs liability 10, lerger.
100, Greenleaf evidence, Sec. sos. Nor does the
fact that their receipts were signed or executed by
both the plaintiff and Isaac Phelan. preclude the
defendant from showing that the work and nateri-
ais referred to, were really performed and furnished
BY the plaintiff Greenleaf 5 evidence, Sec. 500.
The judgment viii be received and . new trial
granted WRIGHT:
Test: NJ D. WEIGH Clerk