35

admissible, where it is not claimed that the invoice was defective or improperly taken, upon the question of his financial condition at the time he purchased the goods and stated that he was solvent. But an instruction in an action for obtaining goods by fraud, that, in addition to the value of the goods, plaintiff can recover interest on their value, damages for their detention and such damages as the jury reasonably think he deserves, is erroneous as giving the jury too much license in the matter.36

§ 1725. Set-off, counterclaim and recoupment. — Damages for breach of warranty or for false and fraudulent representations may be allowed by way of set-off, counterclaim or recoupment, provided generally the requirements of statutes or of pleading or practice are complied with, where such requirements are essential."

§ 1726. Evidence. Where there is a breach of warranty and fraud in selling rags infected with a loathsome disease, the evidence thereof and of damages may go to the jury, but the court may properly refuse to permit the buyer to testify in general terms what he estimates the amount of his damages to be, without stating the items of damage or any facts upon which his opinion is based. So it may be shown on the question of damages arising from plaintiff's breach and the consequent failure of defendant to have her grapes marketed, that grapes tendered under a contract requiring plaintiff to ship all the grapes grown by defendant and market them for her, were not fit to

35 Waples-Platter Co. v. Turner, | Clarke, 45 Minn. 477; 48 N. W. 25 83 Fed. 64. (not allowed); Millsaps v. Merchants' 36 Cole v. High, 173 Pa. 590; 34 & P. Bank, 69 Miss. 918; 13 So. 837; Atl. 292.

37 Thomson-Houston Electric Co. v. Central Electric R. Co. (Cal. 1898), 55 Pac. 777 (not allowed); Fraser v. Ross, 1 Penn. (Del.) 348; 41 Atl. 204 (not allowed); Green v. White, 5 Ind. App. 343; 33 N. E. 214; Graff v. D. M. Osborne & Co., 56 Kan. 162; 42 Pac. 704; Cary v. Guillon, 105 Mass. 18; 7 Am. Rep. 494; Loudy v.

Picard v. Lang, 3 App. Div. 51; 38
N. Y. Supp. 229; 73 N. Y. St. R. 846
(not allowed); Raymond v. Hogan,
10 App. Div. 189; 41 N. Y. Supp.
971 (not allowed); Maders v. Law-
rence, 2 N. Y. Supp. 159; 49 Hun, 360;
Tillyer v. Van Cleve Glass Co., 13
Ohio C. C. 99; 7 Ohio Dec. 209.
38 Dushane v. Benedict, 120 U. S.

630.

39

be shipped. And evidence of the quality of raisins is admissible in an action to recover their value, when they were sold as being of good quality." The defendant may also show that he acted for a third person in purchasing a copartnership interest." So a tenant may show that he gave his cotenant as much for his share of a vessel as it was worth. And evidence of an attempt by a purchaser who has rescinded a sale for breach of warranty, to induce the seller to arbitrate, is competent to explain delay by such purchaser in reselling the goods. So the defendant is not confined to proof of entire worthlessness, but may show that the property was of less value than it would have been if as represented." But it is decided that an action of deceit cannot be supported by proof of damages resulting from the breach of a warranty, either express or implied, since the action is ex delicto, and the proof relates to an action ex contractu.45 Nor is evidence of an item of expense incurred by plaintiff admissible, where it is not set forth in the petition as constituting any part of the damages sought to be recovered. Nor is evidence as to the comparative cost to the manufacturers of constructing straight and conical bolts for safes admissible where the issue is whether the safes delivered answered the specifications, and if not, the difference in value. Again, evidence is inadmissible that the buyer of wheat to be shipped realized a profit on it above what he had agreed to pay for the wheat ordered. So evidence that the selling price of the goods in question was arrived at by adding a certain per cent to the invoice price, is immaterial when offered to show that the value placed upon the merchandise by the state's witness was not the market price. And evidence

47

46

39 Earl Fruit Co. v. Curtis, 116 Cal. 632; 48 Pac. 793.

49 Estrella Vineyard Co. v. Butter, 125 Cal. 232; 57 Pac. 980.

41 Hidden v. Hooker, 70 Vt. 280; 40 Atl. 748.

42 Matthews v. Bliss, 22 Pick. (Mass.) 48.

43 Rubin v. Sturtevant (C. C. App.

44 McConnell v. Lewis, 58 Neb. 188; 78 N. W. 518.

45 Brooke v. Cole, 108 Ga. 251; 33 S. E. 849.

46 Snowden v. Waterman, 105 Ga. 384; 41 S. E. 110.

47 Deane v. Denver & R. G. R. Co., 77 Ill. App. 242.

48 Andrews v. Schreiber (C. C. W.

2d C.), 51 U. S. App. 286; 80 Fed. | D. Mo.), 93 Fed. 367. 930.

49 Tuttle V. State (Tex. Crim. App.), 49 S. W. 82.

that goods would have been sold for a certain amount in one state after being prepared for market at such price does not sustain a finding that they would have been worth such amount in another state.50

50 Silberhorn Co. v. Wheaton (Cal. 1897), 51 Pac. 689.

112

1777

CHAPTER LXI.

SALES OF REALTY.

§ 1753. Vendor's breach of contract 1769. Right to damages does not