25 Del. 566 | Del. Super. Ct. | 1912
delivering the opinion of the court.
This is an action on the case for the recovery of damages, alleged to have been sustained by the plaintiff by reason of the failure of the defendant company to sell and deliver ready-mixed mortar of the quality suitable for use in the erection and construction of a certain building.
The plaintiff has demurred to the pleas, and our present consideration is on the demurrer.
The averments in each of the counts are, in substance, that the said ready-mixed mortar was purchased by the plaintiff, at the special instance and request of the defendant company, for the building of a certain garage, known to the defendant company, and was paid for by the plaintiff; that it was not of suitable quality for the use for which it was purchased and used, but on the contrary was unsuitable for said purpose, whereby it became and was of no use or value to the plaintiff, and he has thereby been put to great expense, in and about the building of said garage, and has expended large sums of money, in and about the purchase of stone, bricks, and other materials, and in the service and employment of laborers, mechanics and other persons, in and about the construction and erection of said garage and for other purposes incurred in and about the same; and that by reason of the premises great damage has resulted to him, the plaintiff.
Each of the defendant’s pleas, in bar of the action, aver that the plaintiff is estopped from alleging as he does in his several counts, for the reason, it is alleged in substance, that prior to bringing the present action, the defendant herein brought an action against the plaintiff herein before a justice of the peace for the balance of the price of the mortar mentioned in the three counts of the plaintiff’s amended declaration; that the said defendant in that action appeared and defended against a recovery for the price on the ground that the said mortar was not suitable for the purpose for which it was bought, and produced testimony to show that it was unsuitable for said purpose and was of no value to him; and that such being his defense, judgment was rendered against him by the justice in favor of the plaintiff in that action for the amount of its demand, which said judgment was not appealed from and has not been reversed, and which the defendant therein has since paid, and satisfaction has been entered on the record thereof. The record of the justice of the peace is set forth in
The question for our determination is whether the said judgment recovered before the justice of the peace by the present defendant in the action brought by it against the present plaintiff to recover the balance of the purchase price of the said mortar, is a bar to the present action for the reason alleged in said pleas.
Contention was made by counsel for the defendant, in this action, that whether the defense set up by the defendant, in the action before the justice of the peace, is to be considered as a counterclaim in the nature of recoupment, or for unliquidated damages arising out of the alleged failure to deliver suitable mixed mortar for said building purpose, or strictly as a defense in bar to said action, it was an issue before and within the jurisdiction of the justice, passed upon and determined by him, and that his judgment is final and conclusive upon said issue. And it was insisted that the mere fact that the damages claimed by the defendant in said action were unliquidated did not take the issue of fact presented out of the jurisdiction of the justice of the peace, citing Gruell v. Clark, 4 Penn. 321, 54 Atl. 955; Barr v. Logan, 5 Harr. 52; Cannon v. Matthews, 3 Houst. 97; Spahn v. Willman, 1 Penn. 125, 39 Atl. 787, and Colesberry v. Stoops, 1 Harr. 448. And it was further contended that in an action upon a contract for the sale of goods, the defendant may show, in bar of the action, that the consideration had failed by proving that the goods in question were of no value, citing Bye v. McCaulley & Son Co., 7 Penn. 115, 76 Atl. 621; Armstrong v. Columbia Wagon Co., 6 Penn. 274-278, 66 Atl. 366; Leonard & Co. v. Johnson Forge Co., 3 Penn. 104-108, 50 Atl. 541, affirmed in 3 Penn. 344, 51 Atl. 305, 94 Am. St. Rep. 86, 57 L. R. A. 225; Hall v. Cannon, 4 Harr. 360-362, and Davis v. Bonnewell, 1 Houst. 460.
The demurrer is overruled. Judgment of respondeat ouster is entered upon the election of the plaintiff.