Stevens v. Smith
21 Vt. 90
Vt.
1849
Check Treatment

The opinion of the court was delivered by

Kellogg, J.

We discover no sufficient reason for disturbing the judgment of the county Court. The claim of the defendant, to have deducted from the plaintiff’s account such part of the kettles as proved, upon trial, to be unsuitable for the purposes for which the defendant purchased them, is untenable. There was no warranty *93of the kettles, nor is it pretended, that the plaintiff was guilty of any fraud in the sale, or that he had any knowledge of the existence of the defect in the iron, of which the defendant complains. Indeed the case finds, that the plaintiff was ignorant of such defect. The defendant was engaged in the purchase and manufacture of iron of this description, and may well be supposed better qualified to judge of its value and fitness for the purposes for which it was purchased, than the plaintiff. The plaintiff made no representation of the value or quality of the iron. At the time of the delivery of the kettles the defendant had an opportunity to examine them. He received them without objection.

It is not, then, on the ground of fraud, or misrepresentation, of the plaintiff, that this deduction can be claimed; but it is said, that, upon the sale there was an implied warranty, that it should answer the description of the property sold, and the case of Conner v. Henderson, 15 Mass. 319, has been cited in support of the proposition. Admitting the doctrine contended for, we do not perceive, that it will aid the defendant.' The plaintiff bargained and sold to the defendant “ old potash kettles,” and I suppose it is not denied, that the kettles delivered were of that description. The case of Conner v. Henderson is not analogous to the case at bar. In that case the property delivered did not answer the description of the property sold, and yet, as the defendant was ignorant of the defect, there was no fraud, and consequently the court held him not liable in the suit. But in the case at bar, the kettles delivered fully answered the de» scription of those sold.

Nor can the particular usage of the defendant, of deducting from the weight of the iron he purchases that, which, upon trial, is found unsuitable for use, avail him ;' inasmuch as the knowledge of such usage is not carried home to the-plaintiff, and, consequently, he cannot be supposed to have contracted with reference to such usage, and the case finds no such general usage.

It is also insisted, that the auditor should, at least, have deducted from the plaintiff’s account the amount of the note against Willard, inasmuch as, by the terms of the contract, the note was to be received in payment for the kettles. To this we deem it a sufficient answer, that the report shows, that, after the delivery of the kettles, the defendant, in violation of his contract, utterly refused to deliver the *94note to either Willard, or the plaintiff. The plaintiff, then, was driven to the necessity of commencing his suit to recover his account ; and it comes with ill grace from the defendant, after having repudiated the contract, and after the institution of this suit, to claim allowance of the Willard note. Such claim cannot be allowed. He could only claim that by force of the contract; and having repudiated the contract, he must now look to the maker of the note for payment.

The judgment of the county court is affirmed.