The daily gazette., 1876-12-13

later commenced tne establishment OF
different rule, it being afterwards held
that the defendant might show in defense
that the work done on articles delivered
were not in accordance with the contract
and obtain denuction from the price on
that account or verdict if they were of
no value. This was taking long stride
| forward in the course ofiudicial decisiOn;
but there has been no recession from the
advance.
The propriety OF the ruling was so con-
sistent with reason and that wise poll
cy which never refuses to advance in any
department of human knowledge or sys-
tenn of juris prudence, when it is proper |
to do so, that there have since been no
adverse decisions in the English Courts;
on the contrary they have invariably rec
ognized it to be law and have regulated |
all their decisions upon cases falling with |
in the principle there established, accord |
ing to the same standard.
The real reason for this departure was
that by allowing the party sued to use the |
defenses which as plaintiff in another |
action he might employ in support of a
claim for breach of contract on the plain |
tiff's part, crcuity of action and the cost
and expense thereof would be avoided
In fact the courts aimed to do what in
actions for money demands had been
done by the statutes of setoff. Here such
Let tat rnIIl1 hnva fprpp hpnanSp
money demands only could be subjects of
them; but the benefit of them could be
obtained by allowing the defendant in
suits to recover the contract price of an
article sold and delivered under war
ranty or work and labor done and per-
. formed, to show, that the articles or ser
, vices were of no value and thus defeat
the action altogether, or were of
inferior value and thus reduce the
plaintiffs damage. And rs in suit for
money demands, where the plea of set
off might or might not be used to reduce
the plaintiffs claim or defeat it aitogeth-
: cr and if not used no prejudice was allow
O ed against the defendants ground of de-
Ifense; so in actions to recover the con-
tract price of goods warranted or services
rendered, it was decided that although
: the defendant did not resort to his de-
fense for breach of the contract, he
: should not be precluded from insisting
y upon it in an action to be brought by him
y to recover for such breach. In other
s. words that although he might have avail
N ed himself of the defense of breach ON the
,e part of the plaintiff in the action against
IN him. vet that fact should furnish no de
n fense to his defendant tho former plain
tiff in his action to recover damages fol
breach of the warranty in their contract
= Such is unquestionably the law in Eng
land, and SO far rs we know, it has been
/ recognized as the law also in this country
wherever case has arisen TO call for its
y recognition. (Hers the Court cited au-
n thorities.)
st We do not deem it necessary to go
# further into the reasons which induced
Il the English Courts to adopt the rule es-
- tablshed, circuity of action being an evil
:. which it has always been the policy of
. the courts to suppress
l. But distinction has been sought to be
l. drawn between cases of warranty or for
l. work and labor and the present. which is
e suit for an alleged breach of con-
n tract to supply timber of certain
quality, but we think none exist
# in principle between this and a suit to re-
! cover for breach of contract on account of
insufficient or inferior work and labor
u Tho aooa Of xuorra pt ty ip6aad st,p5s ,,,an
u the ground that the warrantee. having by
the nature of the contract warranty tech
n nically, applying only to a thing in esse
h and ascertained) the property in the
e thing sold which he cannot revest in the
3 vender without his consent, is driven to
J., his action to recover damages for breach;
n and therefore to avoid circuity he shall
be allowed to use the breach in reduction
or defeat of the claim; yet cases of breach
of contract for work and labor have been
y put upon the same ground and for the
obvious reason that otherwise a party
d would be deprived of the benefit of such
y performances as he might be willing, un-
a der circumstances to put up with, sooner
n than be disappointed of having personal
pears by the case ofDavis VS.. Hughes de-
a cided so late as the summer of1S71 by the
\ court of Queens Bench in England as re-
ported in the 9th volume of law reports,
II it is there stated by Judge Hannin, who
! delivered the opinion of the Court; that
the law is the same in the case of a con-
n tract for the delivery of chattels, of a par
n ticular quality as this is.
: This is not case of warranty. A
: warranty as before said, can only, in a
legal sense, be made of things in exis-
, tence and ascertained. For example,
particular and specific as certained thing,
be that ship, horse, machine, or other
chattel, may be warranted to possess Ger
tain qualities, and if falsely made, damages
nav he recovered for a breach of tba+