Horace Gray

“ The damages recoverable for a breach of warranty, or for a false representation, include all damages which, in the contemplation of the parties, or according to the natural or usual course of things, may result from the wrongful act. For instance, if a man sells hay or grain for the purpose of being fed to cattle, or such as is ordinarily used to feed cattle, and it contains a substance which poisons the buyer's cattle, the seller is responsible for the injury. ”

“ If they fail to prove a warranty, express or implied, the statute can have no application, because it extends to no claim sounding in tort only, whether in the nature of an action of deceit or of such an action as these defendants might maintain against a person with whom they never had any contract, who willfully or negligently introduced the small-pox into their mill. ”

“ What he is not, in good conscience, entitled to receive, he should not be permitted to receive. Light v. Stoever, 12 Serg. & R. 431, 433.
The result of the Pennsylvania decisions may be summed up thus: First. Independently of the statute, any matter, either of contract or of tort, immediately connected with the plaintiff's cause of action, (which would seem to include everything that could be set up by way of recoupment under the law as generally understood and administered in the American courts,) may be set up by way of defense to the action, and in abatement of the plaintiff's damages only. ”

“ A warranty, express or implied, that rags sold are fit to be manufactured into paper, is broken not only if they will not make good paper, but equally if they cannot be made into paper at all without killing or sickening those employed in the manufacture. ”

“ But under their counter-claim, seeking, as permitted by the statute of Pennsylvania, not only to defeat the plaintiff's action, but also to recover an affirmative judgment against him, they can avail themselves only of claim sounding in contract in the nature of an action of assumpsit upon the supposed warranty. ”

“ Upon the question of damages there was distinct proof, not only of the rags being so infected with the small-pox that they could not be made into paper without injury to the workmen, but also of sums paid by the defendants to support those workmen who had been disabled by the disease, besides evidence that the defendants, in consequence of the injury to their business by the small-pox introduced in the rags, were obliged to run their mill short-handed, and lost a considerable part of a profitable country trade. ”

“ When a dealer contracts to sell goods which he deals in, to be applied to a particular purpose, and the buyer has no opportunity to inspect them before delivery, there is an implied warranty that they shall be reasonably fit for that purpose. ”

“ And in a later case in that state, Chief Justice BIGELOW observed that the essential elements on which the application of the principle of recoupment depended, were two only: 'The first is that the damages which the defendant seeks to set off shall have arisen from the same subject-matter, or sprung out of the same contract or transaction, as that on which the plaintiff relies to maintain his action. ”

“ Smith, which was an action against a railroad corporation by a contractor to recover the price of a draw-bridge, it was held that the defendant might show that the construction of the bridge was so defective as to make it unfit for its purpose, and the draw worked so imperfectly as to hinder and delay the running of the cars over it, and might prove the number of hands required to work the bridge as it was built, and the number that would be necessary if it had been properly constructed. ”

“ The courts of Pennsylvania, having originally had no jurisdiction in equity, have always allowed equitable defenses in actions at law, under what is there known as a 'plea of payment with leave;' that is to say, with leave to prove any special matter. ”

“ So, if one sells an animal warranting or representing it to be sound, which is in fact infected with disease, he is responsible for the damages resulting from a communication of the disease to the buyer's other animals, either in an action of tort for the false representation,-Mullett v. ”

“ The special matter stated in the affidavits of defense was that the plaintiff came to the defendants' mill, and there solicited and obtained an order for good merchantable rags, free from infection; that the defendants had no opportunity to inspect the rags before delivery; that the rags sent were infected with the small-pox before the plaintiff shipped them ”