Year: 1876

CHEF JUSTICE COMEGYs.


NEW CASTLE, Dec. 12, 1876.


At New Castle, yesterday, Chief JUS
tice Comegys delivered the following
opinion in the case of Tomlinson & Co.,
VS.. John f. Quigley:


In this case, which was one ofpleading
under special demurrer to the plaintiffs
special replication to the plea of the de-
fendant, but which has been made to as
sumo the character Of case stated by
agreement of the counsel on both Sides
We are called upon to decide question
presented for adjudication forthe fist time
in this State. 1t is whether an action
will lie for an alleged breach by the de-
fendant of a contract respecting the quail


ty of articles furnished by by him after
their acceptance by the plaintiff and pay
ment made of the price fixed by the con-
tract,


The question submitted to the court by
the agreement of the parties is this: Can
an action brought by the plaintiff against
| the defendant be maintained in this court
taking into consideration the facts and
circumstances alleged or shown by the
pleadings. As bcfoLc said, it is the first
time it has come up for judicial dctermin-
alton In this State and being ofgreat i'm
i; portance we have given to the considera-
| ton of it much time and research. The
facts of the case, as gathered by us from
the pleadings, are as follows:


The plaintiff in this action being about
! to build a schooner vessel, negotiated
! with the defendant for delivery by the
latter to the former of the timber and
plank OF which she was to be built; and
it was in substance agreed between them
that the defendant should supply such
timber and plank for said vessel all to be
of first class Delaware white oak, at prices
fixed between them for the different de-
scriptions of material, to be paid to him
by the plaintiff. The timber was sup
piled and large part ofthe contract price
| for the same was voluntarily paid and
the residue was also paid by the plaintiff
to the Sheriff, on execution process issued
upon judgment recovered in this court by
the defendant against the plaintiff, in a
proceeding under the Mechanics Lien
law, then in force; no objection to the
timber on the ground ofquality or other
wise at its delivery from time to time
was made, nor was any defense offered
by the present plaintiff in the action
brought against him for the recovery un-
der the aforesaid Lien law, on the ground
of such defect by way of deduction from
the claim made in said action; and upon
these facts and circumstances the ques-
ton above stated is submitted for decis-
ion.


Undoubtedly the law once was, that in
the case of suit to recover the contract
price of an article sold with a warranty
or manufactured by the plaintiff for the
defendant, and which was not wholly un-
fit for the purpose for which it was want
ed; or for tine performance of services
rendered by the plaintiff to the defendant '
the defendant could make no defense in
the first case that the article purchased
did not correspond with the terms of the
warranty; nor in the second that the
manufactured article was unfit for the
purpose for which it was designed; nor
in the last that the services were not such
as were stipulated for; but he was driven
to his cross-action to recover in his turn,