117 Mass. 14 | Mass. | 1875
In an action upon a promissory note, the defendant is permitted to» allege and prove in defence that which was formerly only the subject of a cross action. Thus breach of warranty or fraud in the sale of personal property may be given in evidence, when specially set up in the defendant’s answer by way of recoupment. Harrington v. Stratton, 22 Pick. 510. Hodgkins v. Moulton, 100 Mass. 309.
This instruction was properly refused, in view of the defence set up. The delivery of the property furnished a good consideration for the note. There is no fraud or breach of any special agreement, or of any warranty express or implied, alleged in the answer, and the defence which the request assumes is not open. The purchaser takes his risk in a sale of property without warranty, false representation, or other fraud, amounting to something-more than mere commendations of the seller.
The question, “ How much less in value by reason of these alleged imperfections the whole apparatus was worth ? ” put to the witness Collins, was properly excluded for the reasons above given. Where there has been fraud or breach of warranty, the buyer may indeed recover all demands which are the natural and direct result thereof, and that may include something more than the difference between the actual value and the price paid. That rule is not to be applied to the facts, which the defendants are allowed to rely on here. Exceptions overruled.