Everett v. Gray

1 Mass. 77

Opinion

The whole Court (Strong, Sedgwick, Sewall, and Thachei, justices) ruled, that as the defendants had accepted the locks without objecting to them at the time of delivery, it was not competent to them to go into this defence in this action ; but their remedy would be by a special action of the case against the plaintiff for the deceit and fraud in the workmanship. The defendants were defaulted, and damages assessed for the whole sum demanded in the count upon the special agreement,

(a)

[Such defence is good in case of a sale with warranty. Cormack vs. Gilles, 7 East, 480. — King vs. Bosson, ib. 481. — Germaine vs. Burton, 3 Starkie’s Rep. 32. — Baston vs. Butter, 7 East, 480. — Street vs. Blag, 2 B. & A. 456. — Dodge & Al. vs. Tileston & Al, 12 Pick. 358. — Ed.]