Voss v. McGuire , 1885 Mo. App. LEXIS 366 ( 1885 )

Opinion by

Hall, J.

1. The defendant complains of the action of the trial court in giving plaintiff’s instruction numbered one.

That action of the court was erroneous. The contract of sale, whether it was such as the evidence of plaintiff tended to show, or such as the evidence of defendant tended to prove, contained an implied warranty. “In a sale by sample, the seller warrants the quality equal to sample.” Benjamin on Sales (4th Am. Ed.) Vol. II, p. 847, note 26 ; Graff v. Foster, 67 Mo. 517.

“A sale by description imports a warranty that the property sold is of that description.” Benjamin on Sales, supra, Vol. II, p. 844, note 24; Whitaker v. McCormick, 6 Mo. App. 114.

The sale containing an implied warranty, in this suit brought by the seller for the contract price, the buyer had a right to “set up the defective quality of the warranted article in diminution of the price.” Benjamin on Sales, supra, Vol. II, p. 1155, sect. 1353; Branson v. Turner, 77 Mo. 494; Saunders’ Reports (Williams’ 6th Ed.) Vol. II, Part I, 150 b, note m. This defence is that of a partial failure of consideration, and is not, properly speaking, a counter-claim by way of set-off or recoupment. (Same authorities.) The buyer, in an action of this kind, can obtain special damages only by way of counter-claim, which would have to be set up in the pleadings and established by proof. But a partial failure of consideration is not a counter-claim, and does not have to be specially pleaded, but may be proved under the general issue. Carpenter v. Meyers, 32 Mo. 215.

The right of the buyer to maintain as a defence, in this action, the defective quality of the warranted article in diminution of the price, was not lost by the buyer receiving and accepting the said article. Benjamin on Sales, supra, sects. 1351 and 1352; Branson v. Turner, supra.

2. The complaint made by the defendant of the action of the circuit court in refusing to give his instructions, numbered five and six, is not well made.

Instruction numbered five should not have been given, because, the wool having been sold and delivered to defendant, and retained by him, the burden of proof was on him to establish “a failure of consideration, total or partial, consequent upon a breach of the warranty.” Branson v. Turner, supra.

Instruction numbered six was properly refused for the same reason, because, the wool having been delivered to defendant under the contract, and retained and accepted by him, “it did not follow that the plaintiff could recover nothing, if there was a false representation or breach of contract.” Branson v. Turner, supra.

The judgment of the circuit court is reversed, and the cause is remanded.

All concur.