64 Mass. 88 | Mass. | 1852
When personal property is sold with warranty, the buyer is entitled, although he does not return it to the seller, nor give him notice of its defective quality, to maintain an action for breach of the warranty; or, if an action is brought against him by the seller for the price, he may prove the breach of warranty, either in diminution of damages, or in answer to the action, if the property be of no value. Fielder v. Starkin, 1 H. Bl. 17; Poulton v. Lattimore, 9 Barn. & Cres. 359; Pateshall v. Tranter, 3 Adolph. & Ellis, 103; 2 Smith’s Lead. Cas. 15, 17. This is settled and familiar law, and is not denied by the defendant. But he takes the position, that where the seller not only warrants property, but also engages to take it back if it is not what it is warranted to be, the buyer’s only remedy, if the warranty is broken, is to return the property; that if he receives and retains the property, he cannot maintain an action for breach of the warranty. The case of Adam v. Richards, 2 H. Bl. 573, is cited in support of that position. The marginal abstract of that case is thus: “ Though on the sale of a horse there is an express warranty by the seller that the horse is sound, free from vice, &c., yet
The exception to the instruction to the jury, that it was for them to decide whether Hunt made his decision within a reasonable time, is presented abstractly, and might therefore be overruled on the ground that it does not necessarily show that the instruction was wrong. But it is found, on recurring to the minutes of the judge before whom the cause was tried, that both parties introduced evidence as to the manner in which the plaintiffs manufactured axes; the various processes through which the iron passed; the stage at which, in the progress of manufacture, the defect in the iron was discovered ; and the experiments tried for the purpose of ascertaining whether the defect was in the workmanship or in the non. It was therefore a case in which the question, whether Hunt’s decision was made within a reasonable time, was for the jury to decide, upon all the evidence. Okell v. Smith, 1 Stark. R. 107; Greene v. Dingley, 11 Shepley, 131; Spoor v. Spooner, 12 Met. 285.
Exceptions overruled and judgment on the verdict.