| Superior Court of New Hampshire | Dec 15, 1850
In the case of Reed v. Prentiss, 1 N. H. Rep. 176, where an article is sold with a warranty as to its quality, it is said by Woodhury, J., that a breach of warranty subjects the vendor to pay all that is lost by the breach, and suffering the vendee to avail himself of this breach in answer to a suit for the consideration, prevents circuity of action, and produces no difference in the estimation of the damages. The principle seems to be, that as the article received is not the kind of article agreed for, the expected consideration for the note never passed.
In this case the purchaser has not attempted to seek redress by rescinding the contract, for then a return of the chattel would have been necessary, but the defence is rested, as in Shepherd v. Temple, 3 N. H. Rep. 435, upon the ground that the note was in truth given without any consideration. The question here is not whether there has been a partial failure of consideration, and whether the pump was of any value. If there were nothing in the case but a mere breach of the warranty that the pump should work well, perhaps the breach could be given in evidence to reduce the damages ; but the cases on this point are conflicting. But the contract is in substance, that, if the pump should not work well and give satisfaction, the party would “ refund the pay.” These stipulations formed the consideration of the note. Upon the violation of them a right would accrue to the defendant to recover whatever he might have paid. And it would, to use the language of the court in Shepherd v. Temple, be very
The plaintiff in this case agreed by his agent, that he would in a certain contingency, “ refund the pay ” he had received. He received the “ pay ” by the promissory note now in suit, and the evidence proved that the contingency had happened. If the defendant had paid the money, instead of giving a promissory note for it, he would upon proof of the facts be entitled to recover it. If there were ever a case where a defence like this should be admitted to avoid circuity of action, it is the present. “A second litigation on the same matter,” says Mr. Justice Marcy, “ should not be tolerated where a fair opportunity can be afforded by the first to do final and complete justice to the parties.” McAlister v. Reab, 4 Wend. 492. And as the sum which the 'defendant would be entitled to recover in a suit, is the precise sum mentioned in the note, we see no reason why the defence should not be admitted.
Judgment on the verdict.