CHAPTER VII. ON SALE AND DELIVERY OF CHATTELS. § 3573. Explaining the contract, and showing a breach as to delivery. [TITLE.] Form No. 839. The defendant answers to the complaint: I. That it was a part of the agreement referred to in the complaint that the plaintiff should deliver the goods sold at II. That the said goods have not been so delivered. § 3574. Damages by way of recoupment. Damages sustained by a vendee of goods by reason of his inability to comply with a contract made by him with a third person do not legally result from a breach of the contract of his vendor to deliver the goods to him, and in an action by his vendor against him, can not be recouped from the plaintiff's claim, unless such damages are specially alleged and set forth in the answer.1 § 3575. Disclaimer. It is not a sufficient objection to the plea that it omits a disclaimer of the contract, and a proffer to return the property. If the defendant looked only to a mitigation of damages, he was not bound to do either, and, therefore, was not bound to make such an averment in his plea.2 § 3576. Estoppels. A party retaining goods delivered under an executory contract, without objection, was held estopped from afterwards denying their value.3 A transaction imbued with the fatal infirmity of being in violation of law can not be purged of its infirmity by means of an estoppel.* 1 Cole v. Swanston, 1 Cal. 51; 52 Am. Dec. 288. 2 Withers v. Greene, 9 How. (U. S.), 214. 3 Fisher v. Merwin, 1 Daly, 234. 4 Martin v. Zellerbach, 38 Cal. 300; 99 Am. Dec. 365. § 3577. Insufficient answer. If the complaint avers the sale and delivery to defendant of goods, and the value of the same, an answer which denies the indebtedness, but does not deny the facts of the sale and delivery and amount of goods, does not raise an issue, as it only denies the legal conclusion resulting from the facts.5 § 3578. Tender. A tender of warehouse receipts for grain, issued by responsible parties, is a sufficient tender of the grain in Chicago, unless objected to by the other party at the time." After a sale at buyer's option within a certain time, notice by the buyer before the time has expired that he will not accept the goods within or at the end of such time waives a tender by the seller. A plea to an action on a bond to deliver goods at a certain time and place should state that the defendant was at the place appointed, in person or by his agent, ready to deliver, etc.8 3579. The same [TITLE.] breach of warranty by plaintiff. The defendant answers to the complaint: I. That the goods therein mentioned were warranted by the plaintiff to be [genuine French broadcloth]. II. That they were not [genuine French broadcloth]. The defendant answers to the complaint: I. That it was a part of the agreement referred to in the complaint that the wheat therein mentioned should be of a first-class milling quality. II. That the said wheat was not of a first-class milling quality, but [state wherein the quality was defective]. § 3581. Defect in quality. Where a seller at the time of the sale agrees that if the goods when delivered are inferior to the sample they may be exchanged, it is a conditional sale, 5 Lightner v. Menzell, 35 Cal. 452; see § 3175, ante. 6 McPherson v. Gale, 40 I. 368. 7 McPherson v. Walker, 40 Ill. 371; see White v. Dobson, 17 Gratt. 262; Millingar v. Daly, 56 Penn. St. 245. 8 Savary v. Goe, 3 Wash. C. C. 140. and the inferiority of the goods is no defense to an action for the price. A defect of quality in goods sold does not, in the absence of fraud or warranty, constitute a defense to the note given for the price, or any part of it. This rule applied where the note was that of a third party.10 Suit on note for the purchase of land. Answer set up that the note was given for the land, fencing, and building materials; that plaintiff falsely represented that there was building material for building a barn; that this material was so insufficient in quantity that it cost six hundred dollars to buy more, etc. There were some averments as to the rotten condition of fences, which plaintiff represented to be good; it was held that defendant, having taken possession under the contract, and retaining it, can not set up representations, fraudulent or otherwise, as to fences, they being in this case part of the freehold; it was held further that a special demurrer being put into the answer, it sets up no defense as to the building material, because neither quantity nor value is given. Plaintiff is responsible, not for what defendant paid for lumber, but for the value of lumber contracted for and not delivered, and this at the time of contracting.11 § 3582. Executing contracts. Where defendants order of plaintiffs goods of a certain description, which were to be procured by the plaintiff from abroad, and the goods delivered did not answer the order, it was held that the doctrine of caveat emptor had no application, the contract being executory, and defendants might recoup from the price of the goods their damages for the defect in quality, although no fraud was charged against the plaintiff.12 If a drove of pigs are sold, with warranty that they are sound, and some of them have an infectious disease at the time of the sale, and others take it afterwards, the purchaser may recoup the damages so caused, as well after the sale as before, when sued for the price.13 § 3583. Recoupment. In an action for the price of goods. sold and delivered, there being a warranty as to the quality 9 Fisher v. Merwin, 1 Daly, 234. 10 Gillespie v. Torrance, 25 N. Y. 306; S. C., 4 Bosw. 36; 82 Am. Dec. 355; Delano v. Rawson, 10 Bosw. 286. 11 Kinney v. Osborne, 14 Cal. 112. 12 Renaud v. Peck, 2 Hilt. 137. 13 Bradley v. Rea, 14 Allen, 20. Vol. II-95 of the goods, the breach of the warranty may be relied on in defense, by way of recoupment, to mitigate the amount recovered; but it is not available as a complete defense to the action.14 The plea of non est factum is a nullity in an action of debt on simple contract.15 The plea of non est factum did not admit the plaintiff's damages.16 Where the defendant pleaded that the obligation was given for horses, which did not prove to be sound or of as high a pedigree as had been represented to the buyer, the plea was admissible if the defendant looked only to the mitigation of damages.17 CHAPTER VIII. ON SALE OF REAL PROPERTY. § 3584. Denial of agreement. [TITLE.] Form No. 842. The defendant answers to the complaint: That he did not agree with the plaintiff as alleged, or at all. The defendant answers to the complaint: That the plaintiff has not performed the conditions of said agreement on his part; but, on the contrary, has wholly omitted [here state breach, as if in a complaint against him]. 3586. Fraud. A fraud, or breach of warranty, must be specially alleged in the answer, in order to be admissible in proof. The mere fact that a vendor of land was aware of the 14 Earl v. Bull, 15 Cal. 425. Special damages for breach of warranty must be specially pleaded, and it must be shown that they were within the contemplation of the parties as the necessary result of the breach of warranty, and are rarely allowable except in cases of fraud in inducing the contract. Manufacturing Co. v. Gray, 111 N. C. 92; see Beeman v. Banta, 118 N. Y. 538; 16 Am. St. Rep. 779. 15 Gebhart v. Francis, 32 Penn. St. 78. 16 Bennett v. Brown, 31 Barb. 158. 17 Withers v. Greene, 9 How. (U. S.) 213. 1 Deifendorff v. Gage, 7 Barb. 18. existence of a judgment, which was an incumbrance on the land at the time of his sale, and failed to inform the vendee of the existence of such judgment, is not a fraud so as to constitute a defense to a suit on a note for the purchase money, where the means of information to-wit, the county records were equally accessible to both parties. In such case, if the vendee neglect to inform himself, he is guilty of negligence, and can not set up his ignorance as a ground of fraud, unless by deceit or misrepresentation he has been misled.2 I. That the plaintiff warranted the property therein mentioned to be free from incumbrances. book .... ......... page II. That there was then and still is a mortgage on the same, in the sum of dollars, unsatisfied, of record in of Mortgages, in the office of the recorder of the county of in this state, and the same then was and still is a valid and subsisting lien and incumbrance upon the said premises.3 § 3588. Covenant against incumbrances. In order to enable one to maintain an action upon a covenant, there must not only be a breach of the covenant, but some loss or damage to the covenantee.4 The weight of American authority is that a covenant against incumbrances, as generally expressed, standing by itself as a separate and independent covenant, is a covenant in praesenti, and broken, if at all, at the instant of its creation, and does not run with the land.5 As to an action or defense, much depends upon the form of the covenant. If coupled with a covenant for quiet enjoyment, it is held to be in futuro, and to run with the land. If the covenant is simply one of indemnity, the covenantee can only recover nominal damages, unless he can show actual damages, or that he has had to pay 2 Ward v. Packard, 18 Cal. 391. 3 This form is from the New York Code Commissioners' Book of Forms. 4 Swall v. Clarke, 51 Cal. 227. 52 Wait's Pr. 380; and see Huyck v. Andrews, 113 N. Y. 81; 10 Am. St. Rep. 432. 6 Hutchins v. Moody, 30 Vt. 658; Hall v. Dean, 13 Johns. 105. |
