3. The agreement under consideration was, in effect, this: Plaintiffs, manufacturers of a superior quality of Swedish iron, known as H. F. S. brand, at Stockholm, knowing that defendant was engaged in manufacturing bolts and nuts at Cincinnati, and wanted iron superior to American iron, not for the purpose of re-selling it in the form received, but for the purpose of manufacturing the same into bolts and nuts, and then selling them to his customers for purposes requiring superior iron, informed the defendant that they had sold to Steever & Potts, Philadelphia, a lot of H. F. S. brand, and advised him to buy of that lot "a ton or so for sample, should you wish to test the quality with a view to import this year." The defendant having purchased of Steever & Potts, three tons, part of the lot, and finding the quality to be excellent, informed the plaintiffs of the fact, and ordered of them twenty tons of that brand. The question is whether this was a warranty by the plaintiffs to the defendant that the twenty tons should be in quality substantially as good as the iron purchased from Steever & Potts. We hold there was such warranty. True, it was not strictly a sale by sample, for the twenty tons had not been manufactured. It was more than a sale by sample. Something better than American iron was needed by defendant for use in his business. It could only be procured by importation, at a price in advance of American iron. He applied to the plaintiffs, manufacturers of the H. F. S. brand, who, knowing his wants, suggested that he buy, for the purpose of testing its quality, a ton out of a lot of that brand which they had sold to Steever & Potts. The defendant was not engaged in buying iron to sell it without changing its form. The name of the brand, to him and his customers, was nothing; the quality of the iron everything. No case has been cited, nor have we found one, opposed to the view that here was a warranty, only to be satisfied by iron equal in quality with that which the defendant had purchased from Steever & Potts. The Pennsylvania cases relied on by plaintiffs (Boyd v. Wilson, 83 Pa. St. 319, and cases there cited), though thought to be opposed to the current of authority (Benjamin on Sales, 4th Am. ed. by Corbin, § 369, note 26), are in no way in conflict with our view of this case.
Moreover, if there had not been such warranty that the quality should equal the Steever & Potts iron, the plaintiffs, knowing the object which the defendant had in view in obtaining iron from the manufacturers in Sweden, would have impliedly warranted that the iron furnished by them was suitable for the purpose for which it was obtained, and free from latent defects. Rodgers v. Niles, 11 Ohio St. 48; Byers v. Chapin, 28 Ohio St. 300; Randall v. Newsom, 2 Q. B. D. 102; Kellogg Bridge v. Hamilton (S. C. U. S.) 18 Cen. L. Jour. 150; Benjamin on Sales (4th Am. ed. by Corbin), § 988,
4. The defendant retains the property, and does not now seek to disaffirm the contract, but to enforce it by claiming damages, by way of recoupment, for the non-performance of the contract with respect to quality (as to which see par. 3 above) and as to delay (as to which see Ogle v. Vane, L. R. 3 Q. B. 272; Hickman v. Haynes, L. R. 10 C. P. 598; Tyers v. Rosedale Iron Co., L. R. 10 Ex. 195; cf. Plevins v. Downing, 1 C. P. D. 220). In view of the nature of the warranty, the defendant may use the iron in his business, and in this action for the price, recoup to the extent he has been injured by a breach of the plaintiffs' warranty. Miller v. Eno, 14 N. Y. 597; Day v. Pool, 52 N. Y. 416; Gurney v. Railroad Co., 58 N. Y. 358; Pomeroy's Rem. (2d ed.) §779. And see Timmons v. Dunn, 4 Ohio St. 680. Dounce v. Dow, 64 N. Y. 411, cited by plaintiffs' counsel, is not in conflict with these cases.
In view of the warranty, the evidence as to the quality of the iron, and the evidence as to delay, there was error in rejecting evidence as to the value of the iron, with a view to recoupment. Whether there was such defect, and if so, what damage resulted from it, and whether there was injury from delay, and if so whether it had been waived, are questions for the jury. Besides, parts of the elaborate charge of the judge of the superior court who presided at the trial, are in conflict with the construction we place on the contract; and this also calls for a reversal.
Judgment reversed and cause remanded for a new trial.
1. Where an action is prosecuted by A., guardian of B., on an instrument
payable to A., guardian of B." the fact that the ward becomes of age
pending the suit affords no ground to abate it. Gard v. Neff, 607.
ACTIONS AND DEFENSES-
1. The general rule is that a defendant is bound to set up every defense,
legal or equitable or both, which he may have to the action, and
waives those not pleaded; but where the facts claimed to afford a
defense are sufficient to constitute a counter-claim, there is an excep-
tion to such general rule. Witte v. Lockwood, 141.
2, A defendant relying solely on his legal title, in an action to recover
the possession of real property, and failing, is not estopped to main-
tain an action to correct mistakes in the deeds under which the par-
ties to such action respectively claimed. He has his election to rely
on such equitable title as a defense or a counter-claim, or he may main-
tain an action thereon. Id. 141.
3. The state is not liable for any part of the fees or expenses of the
county treasurer or county auditor, or their assistants, except where
such liability is created by statute. The state is not bound by the
terms of a general statute unless it be so expressly enacted. State v.
Cappeller, 207.
4. No such liability was imposed upon the state by the provisions of the
acts of March 20, 1866, S. & S. 780; May 6, 1869, 66 Ohio L. 122; or
section 38 of the act of April 5, 1859, S. & C. 1454 (R. S. §§ 2858, 1071,
1097). Id. 207.
5. A person is liable for his failure to deliver to the proper parties the
money paid him for a note and mortgage taken by him as sheriff dur-
ing his term of office, for the deferred payment of purchase money of
land sold on partition, although no special order of distribution thereof
had been made by the court, and the money was paid him after the
expiration of his term of office. Calvin v. Bruen, 610.
6. Such liability is not discharged by paying the money to the attorney
who procured the partition sale, and who was not specially authorized
to receive the same, either by the parties entitled thereto, or by order
of court. Id. 610.
7. Such liability may be enforced by the parties in interest in a joint
action against such person, when no objection is made for misjoinder
nor will the fact that the person sued is designated as "late Sheriff of
H. county," make any difference. Id. 610.
See Scott v. Trustees, &c., 153; Betz v. Bryan, 310; INJUNCTION, 2;
LETTERS PATENT, 1.
ADMINISTRATORS. See EXECUTORS AND ADMINISTRATORS.
Authority without restriction to an agent to sell, carries with it authority
to warrant. Dayton v. Hooglund, 671.
See CONTRACT, 1, 2; PRINCIPAL and Agent; BROKER; INSURANCE, 5.
AGREEMENTS. See CONTRACTS.
Where the evidence tends to prove the commission, by the defendant,
of the crime charged in the indictment, at a particular time and place,
and the defendant offers evidence tending to show that at such time
he was at another place, it is error for the court to charge the jury
that testimony tending to show such alibi was not to be considered,
unless it established the fact by a preponderence of evidence. The
burden of proof was not changed when the defendant undertook to
prove an alibi, and if by reason of the evidence in relation to such
alibi, the jury should entertain reasonable doubt as to the defendant's
guilt, he should be acquitted, although the jury might not be able to
find that the alibi was fully proved. Walters v. State, 215.
A. recovered a judgment before a justice of the peace upon a joint and
several demand against S. and H., who jointly appealed the action to
the court of common pleas. G. and F., the sureties on the undertak
ing for appeal, say: "I do hereby, pursuant to the statute in such
case made and provided, promise and undertake that the appellants,
if judgment be rendered against them on appeal, will satisfy such
judgment and costs," etc. In the appellate court A. recovered judg-
ment against S. only. S. being insolvent, A. brought this action
against the sureties on the undertaking in appeal. Held: The sureties
are liable on their undertaking to satisfy the judgment against S.
Lang v. Pike, 27 Ohio St. 498, overruled. Alber v. Froehlich, 245.
APPEARANCE-
The appearance of a defendant in court for the sole purpose of objecting,
by motion, to the jurisdiction of the court over his person is not an
appearance in the action or a waiver of any defect in the mode or man-
ner by which such jurisdiction is obtained. Smith v. Hoover, 249.
APPOINTMENTS. See OFFICE AND OFFICER.
APPROPRIATION OF PRIVATE PROPERTY.
Bailey, 170.
ASSESSMENTS. See Tone v. Columbus, 281.
ASSIGNMENT-
1. A. drew his negotiable draft in favor of C., a banker, on B. for the
exact amount due him, for the purpose of having C. discount the
same, which he did, in the usual course of business, and paid to A.
the proceeds. While the draft was in transit to B. for acceptance and
payment, he, without any knowledge of its existance, remitted the
amount due, by certified check on his banker, to A., who received
and converted it to his own use, by depositing it to his credit with
his banker, as cash, together with his other deposits, subject to
his checks. On presentation of the draft, B. refused to accept or
pay, and it was returned to C. A. then made a general assign-
ment, having a bank balance to his credit greater than the amount
of his draft. This check was forwarded by his banker for pay-
ment, and two days after the assignment, was paid by the bank
certifying the same. Held: 1. That as between A. & C., and
under these circumstances C. acquired, by equitable assignment, the
right to the amount then in B.'s hands. Gardner v. Bank, 600.
2. B. having remitted to A. the amount, by check, before notice of
the draft, which was afterwards paid, was released from the obliga-
tion to accept or pay, but the check in the hands of A., or his banker,
or its proceeds when collected, belonged in equity to C. in the ab-
sence of any intervening right, and he may, in an action for equitable
relief against the parties, have the same applied to the payment of his
draft. Id. 600.
3. The conversion by A. of this check, by obtaining a credit therefor
on his account in bank, did not defeat this right to the proceeds of the
check when collected, there being a sufficient balance out of which to
pay the same, and no intervening right of the bank or others having
attached. Id. 600,
See GARNISHEE, 3.
ATTACHMENT-
1. In an action before a justice of the peace a garnishee who is summoned
to answer is not a party, nor has he his day in court in that action.
His duty is to appear and answer all questions touching the property
and credits of defendant in his possession or under his control, and
truly disclose the amount owing by him to defendant, whether due or
not, and whether upon a negotiable instrument or otherwise. Secor v.
Witter, 218.
2. If by such answer it appears that he is owing defendant on a negoti
able instrument not yet due, it is the duty of the justice, after judg
ment against defendant, to order him to pay the amount when due to
the justice, to be applied in satisfaction of such judgment. Id. 218.
3. The order of a justice is not a judgment charging the garnishce. It
does not determine the ultimate rights of the parties. It can only be
enforced by actions as in other cases. In legal effect it is an assign-
ment of defendant's right in the claim, to the plaintiff, and authorizes
him to sue thereon in his own name, if the order is not complied with.
ld. 218.
4. In such an action the garnishee may interpose any offset or defense
he may have against the action, notwithstanding the order of the jus-
tice, and no judgment should be rendered against him that will not be
a protection against the rights of third persons. Id. 218.
5. A negotiable instrument, before maturity, is subject to garnishment
in the hands of defendant, and, as against him and those claiming
through him with actual notice of the proceedings in attachment, the
right of the plaintiff in attachment is paramount; but such right is liable
to be defeated by one who, before due, without such notice, becomes the
bona fide holder. The pendency of the proceedings, without actual
notice thereof, will not defeat such holder. Id. 218.
6. In an action for failure to obey the order of the justice, the fact that
the instrument had, since it was seized in attachment, and before its
maturity, become the property of such a bona fide holder, will defeat a
recovery. Id. 218.
7. After the order of the justice and before the maturity of a negotiable
instrument so seized in attachment, equity will interpose, on the
application of the plaintiff, against an indorser with actual notice of
the attachment, to restrain him from transferring the same so as to
defeat the attachment, and on final hearing will grant such relief as
the rights of the parties may require. Id. 218.
8. In actions against incorporated companies by name, as authorized by
that act, constructive service of defendants by publication, as author-
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