
    No. 493
    No. 20289
    Robert S. McMurray v. Vaughn’s Seed Store.
    Error to the Court of Appeals of Logan county.
    297. CONTRACTS — In action founded on contract defendant may, by answer, assert as set-off only a cause of action arising on contract or ascertained by decision of court.
    1087. SET-OFF — Where in action on contract defendant by answer sets up cause of action for damages for negligence not connected with contract sued upon, demurrer should be sustained.
    829. NEGLIGENCE — Retail dealer selling commodity not inherently dangerous, not liable for injury caused by defective condition unless dealer was negligent.
    1255 WARRANTY — Where dealer sells article in manufacturer’s original package and customer knows dealer has not inspected it, there is no implied warranty which would make dealer liable for damages caused by deleterious substance contained in such package.
   MATTHIAS, J.

1. In an action founded on contract the defendant may by answer assert as a set-off only a cause of action arising on contract or ascertained by the decision of the court.

2. Where in an action on contract the defendant by answer set up a cause of action for damages alleged to have resulted from the negligence of the plaintiff, which cause of action did not arise out of nor was connected with the contract sued upon and the answer did not contain averments essential to make a good cause of action ex contractu, a demurrer thereto should be sustained.

3. A retail dealer in selling a commodity not inherently dangerous or harmful is not liable in tort for its defective condition which causes injury to another in the absence of some act of negligence on the part of the dealer.

4. . Where a dealer sells an article of merchandise in the original package as it comes from the manufacturer and the customer buys it knowing there has been no inspection by the dealer, there is no implied warranty and in the absence of an express warranty or representation such dealer is not liable to the purchaser for damages caused by any deleterious substance in such merchandise the presence of which he had no knowledge.

Judgment affirmed.

Marshall, C. J., Day, Allen, Kinkade, Robinson and Jones, JJ., concur.  