29 Kan. 344 | Kan. | 1883
The opinion 6f the court was delivered by
In support of the demurrer -filed by the plaintiffs in this case, it is said, first, that if the defense set forth in the second count of the answer be based on a breach of warranty, it is defective in failing to allege as a fact that the lead paint contracted for was not pure. The allegations
II. As to the defense claiming a lien on the lead for freight and cartage paid, we see no good reason why defendant is not entitled to recover therefor. The plaintiffs sent a quantity of lead paint to the defendant, which was not according to the contract of the parties. When received, without knowledge as to the character of the paint, the defendant paid out $36.90 for freight and cartage. (Barnett v. Terry, 42 Ga. 83.) Where the seller ships goods or other articles to a purchas er
III. It is urged that the defendant is not entitled under the allegations of the answer to recoup damages, and that therefore the fourth count is fatally defective. It appears from the answer, that the plaintiffs promised and agreed to sell and deliver to the defendant, at Salina, within thirty days after March 13, 1882, 4,000 pounds of pure white-lead paint, and that the defendant agreed to pay therefor the sum of $220. It further appears that the plaintiffs wholly refused and neglected to comply with the contract, and that at the time when the paint should have been delivered it was worth at Salina 6J cents per pound. The attempt to impose upon the defendant adulterated white lead in place of the article contracted for was no compliance with the agreement, and defendant is entitled to recover the damage she has sustained by the breach of the contract. The case of Hunter v. Lee, 11 Kas. 292, is not applicable here. In that case there was a contract to deliver certain specific cattle. The plaintiff was ready to deliver those cattle, hence he was not in default. By reason of the falsity of his representations he could not compel the defendant to receive the cattle, nor recover damages for his refusal. Here, the contract was to deliver a certain number of pounds of paint, of a given quality. The particular kegs delivered were not those contracted for, and the vendor did not deliver paint of the quality called for by the contract.
The ruling and judgment of the district court will be affirmed.