Bretz v. Fawcett

29 Ill. App. 319, 1888 Ill. App. LEXIS 126

• Court: Appellate Court of Illinois
• Decided: November 23, 1888
• Status: Published

Opinion

Congee, J.

This was a suit brought by appellee against appellant for the price of certain castings, doors, grates and frames, for a brick kiln, furnished appellant by appellee. The defense was that there was a warranty as to their fitness for the purpose intended, a failure of such warranty, and therefore a right to recoup the damages occasioned thereby against the contract price.

In answer to this, appellee relied upon proving that appellant had admitted the account and promised to pay it.

The following instruction was asked for by appellant:

“ If the jury believe from the evidence that plaintiff agreed to furnish defendant with grates, doors and frames for. brick kilns, and agreed to do a first-class job, then it was the duty of the plaintiff to furnish first-class doors, grates and frames, fit for the purpose for which they were intended; and if the jury believe from the evidence that the plaintiff did not furnish first-class doors, grates and frames, then he can not recover any more than the jury believe from the evidence the grates, doors and frames were reasonably worth when furnished,”

But the court refused to give the instruction as asked, but modified the same by adding: “Unless they believe from a preponderance of the evidence that defendant, after receiving the articles and knowing their character, made settlement with plaintiff’s agent and agreed that lie owed for said grates, doors and frames a certain sum.”

This modification we think worked injustice to appellant, and was erroneous in conveying the idea to the jury that if he failed to claim his damages when the bill was presented, but promised to pay for the articles furnished according to the contract price, he would he precluded from afterward claiming damages for a failure of the warranty.

We understand the law to be, where one purchases goods with a warranty he may, after admitting the correctness of and promising to pay the contract or purchase price of the goods, when sued for such price, recoup any damages resulting from a breach of the warranty: or he may even pay the price and afterward recover such damages in a separate suit. Benjamin on Sales, Sec. 847; Aultman & Co. v. Wheeler, 49 Iowa, 647; Cantrall v. Fawcett, 2 Ill. App. 571.

For this error the judgment of the Circuit Court will he reversed and the cause remanded. Reversed and remanded.