Judd v. Dennison

10 Wend. 512

• Court: New York Supreme Court
• Decided: July 15, 1833
• Status: Published

Opinion

By the Court,

Nelson, J.

It was correctly ruled by the judge, that the defendant had a right to set up a breach of the warranty, made upon the sale of the articles for which the note in question was given in part consideration, either in bar, or to mitigate the amount of the recovery, as the facts might authorize in the opinion of the jury. M'Allister v. Reab, 4 Wendell, 489, confirmed in error, 8 Wendell, 109.

There is no foundation for the distinction urged on the argument by the counsel for the plaintiff, that as part of the oil sold and the whole of the candles were of a quality agreeing with the warranty, a proportional amount of the consideration of the note in question was good, and that for such amount, at least, the plaintiff should have had a verdict. Had the suit been brought on the three notes given for the entire articles sold, such would have been the rule in ascertaining the amount which the plaintiff would have been entitled to recover ; but the idea that the consideration or price of each separate article of property sold is rateably contained in each note, where several are given, as in this case, and that therefore the plaintiff is entitled to recover on each note the proportional price of the articles which proved good, is too fanciful for practical use, or to be recognized in legal proceedings. The only question in the case belonged to the jury, and their verdict is conclusive.

New trial denied.