6 Conn. 477 | Conn. | 1827
Though there is no count upon an insimul computassent, yet as the defendant had given notice of a set-off, it was competent for the jury to have made the set-off as claimed by the defendant; so that instead of a balance of 523 dollars, 83 cents, upon said account, there would have been found due to the defendant upon said account a sum more than sufficient to extinguish the claims of the plaintiff for money paid and lent; which would have entitled the defendant to a verdict.
I, therefore, advise a new trial.
To give the utmost effect to the acknowledgment of the defendant, it was only evidence of indebtedness to the amount of 1500 dollars, capable of being rebutted, by competent proof that the right of Bull & Nichols in the vessel was only of the value of 327 dollars, 17 cents. Such proof was given, and ought to have prevailed, unless it was satisfactorily proved, that it was a bargain of hazard. But, besides that there is no pretence that it was thus a bargain of hazard, it cannot escape observation, that he bought half, when Bull & Nichols were, in no event, to own but three eighths, nor to that amount, unless they complied with the contract, by corresponding advancements.
Suppose Bull & Nichols had not sold, and were now plaintiffs, seeking to recover one half or three eighths of the 6000 dollars, for which the Gipsey was sold, of the other owners ; their claims certainly would be very bald ; for obviously, they could have no right beyond their advancements. But, by selling a part of an unfinished vessel, can they place the purchaser in a better condition than they were in themselves ? I think not.
I go further. Had the defendant given his note to Bull & Nichols for the 1500 dollars, while it remained in the hands of the original promisee, it would have been subject to a reduction down to the 327 dollars, 17 cents. The Phoenix Insurance
It is also established, law, that if goods are sold as of a certain quality, and they turn out to be of an inferior quality, the vendee, when sued for the purchase money, may, by a kind of equitable set-off, have a reduction of the damages. Miller v. Smith, 1 Mason 437. The doctrine is carried so far, by Lord Ellenborough, that if the defendant in an action for the purchase money, does not avail himself of this defence, he shall not be permitted to recover, in a cross action, for any deficiency in value. Fisher v. Samuda & al. 1 Campb. 190. See also Basten v. Butter, 7 East 479.
I discover no difference in principle between these cases and the one under consideration. I am, therefore, well satisfied, that it would be very inequitable for the plaintiff to recover; and the law is therewith consistent. I would, therefore, advise a new trial, as the verdict is against the justice of the case, and unsupported by evidence.
New trial to be granted.
