Dermott v. Fowler

30 F. Cas. 1073, 2 Hayw. & H.D.C. 124, 1853 U.S. App. LEXIS 807

Opinion

On the trial of the case the following remarks were made by THE COURT: We think the jury, in estimating 'the cost of the wall to be paid for by the defendant, may take into consideration such expense as the defendant was necessarily put to to make the part of the wall so used by him fit for that purpose, unless the jury shall find from the evidence that the defendant waived such defects, or those under whom he claims waived them. It must be considered that the defendant, when he purchased, did so with . a view to the condition in which it was at that time, and. whatever damage was done by it. placing the wall there, claimed for in this case, might have risen in relation to the freehold. This defendant cannot have a Tight to recover therefor. There seemed to be a claim for set-off-against-the plaintiff’s account for ground used by the plaintiff, although she denied the claim.