Pratt v. Johnson , 100 Me. 443 ( 1905 )

Strout, J.

August 4, 1903, plaintiffs and defendant made a written contract by which plaintiffs were to sell and defendant to purchase certain toilet articles at specified prices. August 7, 1903, the goods were shipped by plaintiffs, and the notes in suit bearing the same date were given by defendant to plaintiffs for the purchase price. On the same date plaintiffs gave defendant a written guaranty and warranty in relation to the same goods. At the trial defendant claimed a breach of the guaranty and warranty, and proposed to show it in defense, but the Court ruled that the guaranty and warranty were independent and collateral to the notes and could not be construed with the notes, and upon that ground gave judgment for the plaintiffs. Defendant excepted to this ruling.

The exceptions must be sustained. The warranty and guaranty related to the goods for which the notes were given, bore the same date as the notes, and must be regarded as in part consideration for the notes. Any breach thereof by the plaintiffs to the detriment of the defendant may be shown in defense to a suit upon the notes by the original payee. This is not a case of an independent warranty as to another and different transaction, but relates to the particular goods for which the notes were given. The defendant had the option to sue upon the warranty, or, to avoid circuity of action, to set up a breach thereof in defense to this suit. He elected the latter course, and should have been allowed to make the defense. Such is the settled rule in this state. Herbert v. Ford, 29 Maine, 546; Morse v. Moore, 83 Maine, 473; American Gas & Ventilating Machine Co. v. Wood, 90 Maine, 516; Hathorn v. Wheelwright, 99 Maine, 351.

Exceptions sustained..