Bliss v. Locke

[After stating the facts as above.]—If there were no other question or exception in this case than the one to the charge above mentioned it would seem necessary to grant a new trial in this case. The plain interpretation of that instruction to the jury is, and it was undoubtedly the intention of the learned judge who tried this case to- have the jury understand, that notwithstanding any verdict they might render in this action, the defendants would have a right to recover damages for the breach of the warranty contained in the agreement.

It is hardly now necessary to cite authorities to show that that position is entirely incorrect. A recovery for the purchase price of the machines in this action would be a bar to a recovery in any action brought by the defendants for a breach of the warranty contained in the agreement above mentioned (Davis v. Talcott, 12 N. Y. 184; Gates v. Preston, 41 N. Y. 113; Blair v. Bartlett, 75 N. Y. 150). A judgment in favor of the plaintiffs in this action was an adjudication that the plaintiffs had complied with their agreement, and which the defendants in another action would not be allowed to deny.

The answer of the defendants in this case expressly alleged *532that the plaintiffs had failed to perform the agreement mentioned in the complaint upon their part, and that was the main issue presented. They also allege, as a defense, that in consequence of the failure of the plaintiffs to perform their contract in the manufacture mf the machines, they had refused to accept them; and these were the issues which were tried by the jury. It is true that the complaint nowhere alleges, in so many words, that they had performed all the conditions of the agreement or contract upon their part, but it does allege a delivery and acceptance by the defendants of the machines under the contract. And this allegation, upon the part of the plaintiffs, was equivalent to an assertion upon their part that they had complied with the terms of their contract. The acceptance of the machines would raise an implication that those machines did comply with the requirements of the contract. A right to recover the purchase-price of the machines in this action necessarily depended upon the fulfillment by the. plaintiffs of the terms and conditions of the contract upon their part. All of the evidence upon the part of the plaintiffs was introduced for the purpose of showing that the defendants, after having tried the machines, accepted them as a.compliance with the contract, and that, therefore, they were bound to pay for them.

From the nature of the complaint, it would seem that it was assumed upon the part of the plaintiffs that the guaranty referred to in the contract was something independent of the contract itself; but an examination of the contract shows that the plaintiffs covenanted and agreed to construct the machines in a certain way, and that they, would perform certain work in the manner therein mentioned; and if the machines did do the work in that manner, the terms of the guaranty were fulfilled. This being the distinct issue which was presented, a judgment in favor of the plaintiffs in this case was necessarily finding that the plaintiffs had complied with the terms of their contract with the defendants.

The case of Davis v. Tallcot, above cited, seems to be expressly in point, and the facts therein almost entirely identical. In that case an action was brought upon a written agreement, *533"whereby the plaintiffs agreed to manufacture and put up in the defendants’ mill, machinery of a specified kind and quality, for the price of $900. The defendants, by way of answer, denied that the plaintiffs had performed their part of the agreement, and alleged non-performance, and claimed damages for breach of the agreement. Upon the trial the question of damages for the breach of the agreement was withdrawn, and judgment was rendered for the plaintiffs for a certain sum. The defendants in that action then commenced an action against the plaintiffs therein, for damages for breach of the agreement upon their part. The answer set up a former adjudication and the court held that the adjudication in the prior action was a bar to the one subsequently brought. The court say “ It is obvious that, by withdrawing their claim to damages, the then defendants did not waive their right to insist upon their defense. The plaintiffs, notwithstanding, must have established their title to the price stipulated, by proof that the machinery was made within the time and in the manner called for by the agreement, and the vendees were at liberty to meet and combat these proofs by counter evidence upon their part. Now, this is precisely what was done, or, rather, the necessity for introducing evidence to sustain the action was superseded by the admission of the then defendants in open court, ‘ that they were indebted to the manufacturers for the causes of action mentioned in their complaint.’ As the cause of action and the indebtedness of the defendants were, by the complaint, made dependent xxpon a full performance of the contract by the parties who instituted the suit, the concession of the defendants was equivalent to an admission on the record to that effect; and the report of the referee, followed by the judgment of the court, consequently estops the parties to that suit from ever after qxxestioning that fact in any controversy arising upon the same agreement.”

It might be entirely true that if the defendants in this action had paid voluntarily to the plaintiffs the purchase-price of the machines, they could have recovered any damages which they might have sxxstained by reason of the breach of the warranty contained in the agreement; but where an action is *534"brought for the purchase-price, any defense which the party has to the payment of that purchase-price, or any part thereof, must be set up in that action, or he is barred from ever claiming on account thereof.

It would, therefore, seem to be entirely well established that the defendants in this action could maintain no action against the plaintiffs for any breach of the warranty contained in the agreement.

This was a very important point to be considered by the jury in hearing "the testimony in this case. They may have come-to the conclusion to which they did, supposing that if any damages had been occasioned by reason of the failure of the plaintiffs to comply with their contract in reference to the performance of the machines alleged to have been delivered by them, the defendants, by a future action upon the warranty con-. tained in that agreement, would have the right to recover back such damages as they might prove that they had sustained.

It is not necessary in this case for us to determine whether or not under the -facts of this case an action of breach of warranty could have been brought by the defendants against the plaintiffs, or whether they could have counterclaimed damages on account of such breach in this action. Neither is it necessary for us to attempt to reconcile the conflicting decisions upon the point as to whether, after acceptance of merchandise under' an executory contract, the vendee has any remedy as for damages for a breach of warranty. It is sufficient that the learned judge so instructed the jury in this case, and that after judgment in favor of the plaintiffs under no circumstances would such an action lie.

There are other questions which are raised upon this appeal, which would seem to be equally fatal to the judgment, but these, in view of the conclusion to which I have arrived as to this one exception, it is not now necessary to consider.

The judgment must, therefore, be reversed, with costs to the appellants to abide the event.

Charles P. Daly, Ch. J., and Beach, J., concurred.

Judgment reversed, with costs to appellant to abide event.