
    Charles L. Stewart v. Ferdinand H. Bock and others.
    In. an action to recover the price of goods sold and delivered, the defendant may show that the goods sold were, bj the contract, to be delivered in good shipping
    Rentier, and, upon a breach of that contract on the part of the plaintiff, may recoup damages therefor.
    Appeal by defendants from a judgment of the Marine Court. The facts sufficiently appear in the opinion of the court.
    
      Allan Melville, for the appellants.
    Submitted without argument by tbe respondent.
   INGRAHAM, First Judge.

The plaintiff sued the defendants to recover for a balance due for goods sold. Upon the trial of the canse, tbe defendants offered to prove that tbe goods sold were to be delivered in good shipping order, that they were not so delivered, that they were of less value on account of such bad condition, and tbat tbe defendants did not discover the unfit condition until it was too late to return them.

The justice rejected the evidence, upon the ground that it was no defence in an action for the price.

It is too late now to deny the right of the purchaser of goods to recoup damages when sued for the price of the goods, if they are not according to the contract. This was settled so long ago as McAllister v. Reab (4 Wend. 483 ; 8 Wend. 109 ; 22 Wend. 155 ; 3 Hill, 171 ; 5 Hill, 63). This was the law before :he Code, and the provisions of that statute have .extended tbe right of the defendant, by way of cohnter-claimytcf any cause of action arising out of tbe contract or transaction set forth in tbe complaint as the cause of action, or connected with tbe subject of tbe action — as well as to any other cause of action arising on contract. § 15©;: ' ■ ' ■ ■;

It is not' úebessáry to decide bow far tbe provisions, as to -a counter-claim, apply to justices’ courts, because tbe right to recoup damages to the-extent of tbe plaintiff’s claim existed before tbe Code, and is not ‘repealed; and although -it may be that these courts have nof-the power to give tbe defendant a judgment for a balance on such claims, still, be may show that by reason of such damages tbe plaintiff should recover nothing from him.

Tbe court below erred in excluding tbe evidence, and tira* judgment must be reversed.

Judgment reversed.  