Gomegys, O. J.,
delivered the opinion of the court: In this case we are called upon to decide a question presented for the first time for adjudication in this State. It is whether an action will lie for an alleged breach of a contract by the defendant respecting the quality of goods furnished by him after their acceptance by the plaintiffs and his payment for them of the price fixed by the contract. Or, in other words, can the action brought in this case by the plaintiffs against the defendant be maintained in this court under all the facts and circumstances alleged and admitted in the pleadings ?
It is an action of
asswm/psit
upon a written promise and agreement between the parties that the defendant would furnish the plaintiffs the flitch timber, plank, keel, bedlogs, etc., etc., that they might require to build a schooner, all first-class Delaware white oak, delivered on the railroad at Twelfth Street as ordered, plank forty dollars per thousand, keel fifty dollars per thousand, bedlogs sixty dollars per thousand, flitch timber thirty-three dollars per thousand, cash along as timber comes in, part pay, all payments to be made before the schooner leaves Wilmington, signed John T. Quigley. It is admitted that the same was furnished to them by him in the required quantity but not in the stipulated and required quality of first-class Delaware white oak, and a large part of the contract price was voluntarily paid by them to him for it, and the residue of it was also afterward paid by them to the sheriff on execution process issued upon a judgment obtained in this court by him. against them for the balance of it under the mechanics’ lien law. Ho
objection to the timber on the ground of quality or otherwise was made on the delivery of it from time to time, nor was any defense offered by the plaintiffs to this suit in the action against them by the defendant in this court for the balance of the contract price under the mechanics’ lien law on the ground of such defect by way of reducing the damages demanded by him in that action; and it is upon these facts and circumstances the question above stated is submitted for our decision.
It is undoubtedly true that down to the time of the decision in the case of
Basten
v.
Butter,
7
East.
479, the law was that in an action to recover the contract price of an article sold with a warranty or made by the plaintiff for the defendant, and which was not wholly unfit for the purpose for which it was wanted, or for the 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 to the terms of the warranty, nor in the second case that the article made was unfit for the purpose for which it was designed, nor in the last case that the services were not such as were stipulated for, but he was driven to his cross-action in all such cases to recover in his turn damages for the non-fulfillment of the contract by the adverse party. But that case introduced a different ruling, that the defendant might in such cases show in defense that the work done or articles delivered were not in accordance with the contract and obtain a deduction from the price on that account, or even a verdict against the plaintiff if they were of no value. This was taking a long stride at that time in advance of former judicial decisions in such cases, but there has been no recession from that advance since. The wisdom and policy of it have been uniformly recognized by the English courts in all their decisions in subsequent cases falling within the principle and precedent established by it. The reason for it was that under the former rules in such cases cross-actions were necessary between the parties on the same contract and growing out of the same business transaction between them, and the object of it was to prevent circuity of action and to avoid the waste of time and expense in unnecessary litigation. In practice it was adopted and molded somewhat in analogy to the plea of
set-off established by statute in an action for a money demand, but which can never apply where the mutual demand on either side is for unliquidated damages, for while in the classes of cases mentioned the defendant is now allowed to show a breach of the same contract by the plaintiff to his detriment and injury in reduction of the damage demanded by the plaintiff for his breach of it, in analogy to the statute and plea of set-off, the defendant is not bound in such a case to avail himself of this right and privilege, but as in a case of a plea of set-off under the statute he still has his election to waive it and to sue the plaintiff in a separate action on the contract for the damages he has sustained by his breach of it. And as in case of mutual debts or money demands between the parties to a suit, the defendant may or may not at his option avail himself of his as a defense
pro tanto
against that of the plaintiff by pleading it as a set-off under the statute, and is in no wise prejudiced or concluded or estopped if he omits to do so from afterward suing the plaintiff upon it and recovering the amount of it from him, so in actions to recover the contract price of goods sold with warranty ■ or of services rendered, it was decided that a defendant who had sustained damage by a breach of the same contract on the part of the plaintiff had a similar option and might or might not avail himself of it as a defense in the action of the plaintiff against him and in reduction of the damages claimed by him for the breach of the contract by the defendant, but if he omitted to avail himself of it in that manner he was not to be precluded afterward from bringing his action upon it against the plaintiff. Such is unquestionably the settled law now in England on this point, and also in this country, we believe, so far as we have been able to ascertain it.
Street & Blay, 2 Barn. & Adol.
456 ;
Poulton
v.
Lattimore,
9
Barn. & Ores.
259
; Moundel & Steel,
8
M. & W.
858 ;
Rigge
v.
Burbidge,
15
M. & W.
598 ;
Davis
v.
Hedges, Law Rep.
6
Q. B.
687;
Bascom
v.
Manning,
52
N. H.
132 ;
Basten
v.
Butter,
7
East.
479 ;
Benj. on Sales, sec.
899.
But a distinction has been sought to be drawn between cases of warranty or for work and labor and the present case> which is a suit for an alleged breach of contract to furnish timber of
a certain quality, but we think none exists in principle between this and a suit to recover damages for a breach of contract for work and labor on account of the insufficient or inferior character of the work done. The case of warranty, inasmuch as it technically applies only to a thing
in esse
Free access — add to your briefcase to read the full text and ask questions with AI
Gomegys, O. J.,
delivered the opinion of the court: In this case we are called upon to decide a question presented for the first time for adjudication in this State. It is whether an action will lie for an alleged breach of a contract by the defendant respecting the quality of goods furnished by him after their acceptance by the plaintiffs and his payment for them of the price fixed by the contract. Or, in other words, can the action brought in this case by the plaintiffs against the defendant be maintained in this court under all the facts and circumstances alleged and admitted in the pleadings ?
It is an action of
asswm/psit
upon a written promise and agreement between the parties that the defendant would furnish the plaintiffs the flitch timber, plank, keel, bedlogs, etc., etc., that they might require to build a schooner, all first-class Delaware white oak, delivered on the railroad at Twelfth Street as ordered, plank forty dollars per thousand, keel fifty dollars per thousand, bedlogs sixty dollars per thousand, flitch timber thirty-three dollars per thousand, cash along as timber comes in, part pay, all payments to be made before the schooner leaves Wilmington, signed John T. Quigley. It is admitted that the same was furnished to them by him in the required quantity but not in the stipulated and required quality of first-class Delaware white oak, and a large part of the contract price was voluntarily paid by them to him for it, and the residue of it was also afterward paid by them to the sheriff on execution process issued upon a judgment obtained in this court by him. against them for the balance of it under the mechanics’ lien law. Ho
objection to the timber on the ground of quality or otherwise was made on the delivery of it from time to time, nor was any defense offered by the plaintiffs to this suit in the action against them by the defendant in this court for the balance of the contract price under the mechanics’ lien law on the ground of such defect by way of reducing the damages demanded by him in that action; and it is upon these facts and circumstances the question above stated is submitted for our decision.
It is undoubtedly true that down to the time of the decision in the case of
Basten
v.
Butter,
7
East.
479, the law was that in an action to recover the contract price of an article sold with a warranty or made by the plaintiff for the defendant, and which was not wholly unfit for the purpose for which it was wanted, or for the 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 to the terms of the warranty, nor in the second case that the article made was unfit for the purpose for which it was designed, nor in the last case that the services were not such as were stipulated for, but he was driven to his cross-action in all such cases to recover in his turn damages for the non-fulfillment of the contract by the adverse party. But that case introduced a different ruling, that the defendant might in such cases show in defense that the work done or articles delivered were not in accordance with the contract and obtain a deduction from the price on that account, or even a verdict against the plaintiff if they were of no value. This was taking a long stride at that time in advance of former judicial decisions in such cases, but there has been no recession from that advance since. The wisdom and policy of it have been uniformly recognized by the English courts in all their decisions in subsequent cases falling within the principle and precedent established by it. The reason for it was that under the former rules in such cases cross-actions were necessary between the parties on the same contract and growing out of the same business transaction between them, and the object of it was to prevent circuity of action and to avoid the waste of time and expense in unnecessary litigation. In practice it was adopted and molded somewhat in analogy to the plea of
set-off established by statute in an action for a money demand, but which can never apply where the mutual demand on either side is for unliquidated damages, for while in the classes of cases mentioned the defendant is now allowed to show a breach of the same contract by the plaintiff to his detriment and injury in reduction of the damage demanded by the plaintiff for his breach of it, in analogy to the statute and plea of set-off, the defendant is not bound in such a case to avail himself of this right and privilege, but as in a case of a plea of set-off under the statute he still has his election to waive it and to sue the plaintiff in a separate action on the contract for the damages he has sustained by his breach of it. And as in case of mutual debts or money demands between the parties to a suit, the defendant may or may not at his option avail himself of his as a defense
pro tanto
against that of the plaintiff by pleading it as a set-off under the statute, and is in no wise prejudiced or concluded or estopped if he omits to do so from afterward suing the plaintiff upon it and recovering the amount of it from him, so in actions to recover the contract price of goods sold with warranty ■ or of services rendered, it was decided that a defendant who had sustained damage by a breach of the same contract on the part of the plaintiff had a similar option and might or might not avail himself of it as a defense in the action of the plaintiff against him and in reduction of the damages claimed by him for the breach of the contract by the defendant, but if he omitted to avail himself of it in that manner he was not to be precluded afterward from bringing his action upon it against the plaintiff. Such is unquestionably the settled law now in England on this point, and also in this country, we believe, so far as we have been able to ascertain it.
Street & Blay, 2 Barn. & Adol.
456 ;
Poulton
v.
Lattimore,
9
Barn. & Ores.
259
; Moundel & Steel,
8
M. & W.
858 ;
Rigge
v.
Burbidge,
15
M. & W.
598 ;
Davis
v.
Hedges, Law Rep.
6
Q. B.
687;
Bascom
v.
Manning,
52
N. H.
132 ;
Basten
v.
Butter,
7
East.
479 ;
Benj. on Sales, sec.
899.
But a distinction has been sought to be drawn between cases of warranty or for work and labor and the present case> which is a suit for an alleged breach of contract to furnish timber of
a certain quality, but we think none exists in principle between this and a suit to recover damages for a breach of contract for work and labor on account of the insufficient or inferior character of the work done. The case of warranty, inasmuch as it technically applies only to a thing
in esse
and ascertained, stands upon the ground that the warrantee having by the nature of the contract the property in the thing sold and delivered to him which he cannot reinvest in the vendor without his consent, is driven to his action to recover damages for the breach of it, and therefore to avoid circuity of action in such a case he shall be allowed in the action by the vendor and warrantor against him for the price of it to show the breach of the contract and warranty by him in reduction of the damages demanded by him, or even to defeat his recovery entirely. And yet cases of breach of contract for work and labor have been put precisely upon the same ground, and for the obvious reason that the party sued would otherwise have been deprived of the benefit of such a performance of the contract as he might have been willing under the circumstances to put up with rather than not have the work done at the time. This appears by the case of
Davis
v.
Hughes,
decided as late as the summer of 1871 by the Court of Queen’s Bench in England as reported in 6
Law Rep.,
for it is there stated by Hanon, Judge, who delivered the opinion of the court, that the law is the same in the case of a contract for the delivery of chattels of a particular quality.
This is not a case of warranty, for a warranty in its strictly legal and technical sense, as we have before remarked, can only be made of things ascertained and existing, so as to be seen and inspected at the time of the contract, such as a ship, a horse, a machine, or other existing chattel, may be warranted to possess certain qualities, and if it is falsely done damages may be recovered for the breach of it; but an agreement to perform work and labor in a particular manner or to furnish articles or materials of a particular quality is not a warranty technically speaking; it is none the less, however, the subject of an action at law for a breach of it than a warranty is, and the form of the action is the same in either case—covenant if it be under seal, or
assumpsit
if it is not. Now, is there any reason
why a party sued for the price of work and labor performed for him and which he accepted, or for the price of materials to be sold and delivered to him of a particular quality and which were received and accepted by him, although they may not have been of the stipulated quality, should not have a right to sue for the breach of such a contract by the other party to it, as well as the warrantor who has accepted and retained the article warranted has' a right in such a case to sue the warrantor for a breach of the warranty ? It would seem not, except the very technical one founded on the distinction that in the latter case the property in the article vested in the warrantee on its acceptance by him, and he cannot rescind the contract so as to reinvest the property in it again in the warrantor without his consent. Should such a reason and such a distinction be allowed to seriously interfere with what now seems to be the settled policy of the law alike in all these cases, to allow the counter claim of the defendant for damages for a breach of the same contract by the plaintiff, to be given in evidence in the action in reduction of the damages claimed by him in it, and if sufficient even to counterbalance them ?
But it is insisted by the counsel for the defendant that this case stands upon a different footing from that of a case for a breach of warranty or that of a case on a contract for the price of work and labor, inasmuch as the furnishing in this case of first-class Delaware white oak was a condition precedent to any right of action on the part of the vendor, the defendant, to recover the contract price of the timber, and that by accepting and using and voluntarily paying much the larger part of the contract price for it without any objection to the quality of it, and afterward suffering judgment to go against him in this court for the balance of the contract price of it without any defense whatever, the plaintiffs confessed that this condition precedent of the contract had been performed and complied with by the defendant, and that they were thereby estopped in this court from pretending or alleging that it was not of the stipulated quality, and that it constituted on their part what is denominated acquiescence in the performance of the condition of the contract by thq defendant, for which they refer to
2
Stark. Ev.
879. But this will not be the first time that the soundness of that position and the inference of Mr. Starkie in relation to it has been questioned, for from the remarks of Justice Hanon in the case before referred to by us it appears that such a plea or defense does not now avail in such a case as this in England, and should not, we think, be allowed here, but that the rule on this point which prevails in cases of warranty and in cases of contracts for work and labor ought also to apply to a case like this, of a contract to furnish lumber or materials of a specific kind or quality at a stipulated price, and that the latter should stand on the. same footing as the former, and we decide accordingly. The law, then, is to be taken to be that as well in actions for the non-payment of the price of goods sold and delivered under a contract as in actions for goods sold and delivered with warranty, or in actions for the price of work and labor done under a contract, the defendant may at his election either avail himself of any breach of the contract by the plaintiff causing damage to him in reduction of the damage claimed and sustained by the plaintiff from any breach of it by him, or he may sue the plaintiff for the same independently, and the former suit and recovery against him shall be no bar to the latter unless in the former suit he had availed himself of his right and privilege to prove and claim the amount of such damage in reduction of the amount of damages demanded by the plaintiff in it from him.