
    
      Amos Parker v. W. B. Pringle.
    
    In this State, an action may be brought for a breach of the -warranty, without a tender or return of the article purchased; and the same rule applies when the breach of warranty is made a defence under our discount law.
    A set off or discount is a cross action, and a purchaser is entitled to have an abatement of the price, on account of the deficiency or unsoundness of the article for the price of which he is sued, if the evidence show a breach of the warranty.
    
      Before Mr. Justice Frost, at Charleston, October, 1847.
    This was an action to recover a balance of $535, claimed to be due from the defendant, on a special contract with the plaintiff for the construction of two double horse threshing-machines, at $600 each; two corn-mills, to be attached, at $85 each; and for certain repairs, $125; making a total of $1495. Credit was given for $960, leaving the balance claimed.
    A letter from the defendant to the plaintiff was produced, dated 25th May, 1842, wherein the defendant offers to the plaintiff a contract to put up a double horse threshing-mill, with a screen attached, which should be warranted to thresh 250 bushels of rice, as well as any mill in use, for $600; also a corn-mill, to be attached, to grind five bushels an hour, for $85, the work to be finished by the 20th November, following. The plaintiff, by letter, accepted the offer- — -a similar contract for another threshing-machine and «¿orn-mill, was proved — one of the machines was to be put up on a plantation on Peedee, and the other on North Santee. Another letter from the defendant to the plaintiff was produced, dated 20th February, 1843, in which the defendant, expressing himself pleased with the performance of the machine, and hoping (or expecting) it would thresh the warranted number of bushels, encloses to the plaintiff an order for $350. This related to the machine on North Santee. On the 13th May, 1843, a further payment was made on this account, of $200; in November, 1845, a further payment of $10 was made. On account of the Peedee machine, a payment of $350 was made, the 3d May, 1844 — and another of $50, the 19th of the same month.
    The defence was, that the threshing-machine and corn-mill entirely failed of their purpose.
    Respecting the Peedee machine — iSceau deposed that he was the overseer, and attended to it. It never threshed 250. bushels a day. It did 150 to 160 — the average did not exceed 130. It was never a week in order. It was carefully attended; but after every effort to make it work, it was abandoned. The corn-mill was put up one day, but not being successful, it was detached; and remains on the plantation, not used.
    
      Cross-examined — He said the machine was broken, by some accident, the first week after it was put in operation. The beater was not broken, but the teeth were, and dropped out; and the cover was broken. Parker repaired it; but not to the witness’s satisfaction.
    
      Mr. J. R. Poinsett: Deposition — Lived near and saw it, and examined the machine. It never threshed 250 bushels, to his knowledge. He once assisted, with a horse, but it did not succeed. He could not discover the fault. He thought it not a failure ; but in the condition he saw it, it could not be made to thresh up to the contract. He considered Sceau well qualified to work the machine; and he did manage it well.' He'saw the corn-mill, detached; considered it a failure, and refused to have one.
    
      Cross-examined — He has a mill of the same construction, and put up a short time after defendant’s. His machine has threshed 27Ü bushels, and usually averages 180. He is satisfied with it. Has seen only his own and defendant’s. The machines have not generally given satisfaction. The corn-mill is worthless. His own machine differs, but slightly, from defendant’s, in the fan. An accident occurred soon after the machine was put in operation. In January, 1844, he gave to the plaintiff a recommendation of his machine, certifying that it could thresh from 210 to 270 bushels; and with two stout horses would average 250 bushels a day. He heard the defendant express his satisfaction with the Santee machine, the first year; and did not know of any complaint, respecting the Peedee machine, until after the accident. In reply, Mr. Poinsett said the machine was not uniform in its operation. Only under favorable circumstances, .it works up to the contract; generally, under. It requires to be watched with great attention. The accident happened the day the machine was put in operation; and he cannot say how far the failure may be attributed to the accident. He would still give-Parker the certificate he had given; but would not have contracted for a machine, if he had seen the failure of defendant’s.
    
      Sceau: Additional depositions — The accident occurred two or three days after the machine was put in operation. .He has heard the defendant express his dissatisfaction with it. The failure was not attributable to the accident, but to the slight construction. All the work the plaintiff did by way of repair, was done to complete and make the machine work.
    
      Mr. J H. Read, sworn — Is a rice planter; knows Parker; has seen several of his machines, but only two in operation —the witness’s own, and Mrs. Pyatt’s. This was constructed in 1844, and has been in operation ever since, having threshed three crops. The quantity varied from 170 to 325 bushels. Witness’s son has one. All are- of the- same construction. His own mill has done good service, and is satisfactory; will use it as long as it lasts; would not take another at a reduced price. It is too slight, tie has employed a white man. Parker’s machine threshes as much as Weston’s, with one-third of the power. He has heard, with surprise, of the failure of defendant’s. But he understands Mrs. Pyatt’s has been disused-
    
      
      'Cross-examined — Knows nothing of defendant’s machine. And Ford has had difficulty. The witness’s account of the operation of his own, has excited surprise; he thinks it does as well as at first. The fan is dispensed with — which may account for its threshing so much. He should be greatly disappointed if it only threshed 130 bushels. The quantity depends on the quality of the rice.
    
      Mr. Burnett, sworn — Has seen two, his own and Mr. Rhett’s — saw one in operation last winter. He thinks they have given satisfaction; does not know the average.
    
      Cross-examined — Don’t know if Parker’s mills have given satisfaction. Has declined to get any, because they were said not'to work to contract. In reply — He purchased one of the same construction, from Meacham.
    
      Mr. C. C. Pinckney: Deposition — Parker put up a machine for witness. It never succeeded; never threshed up to the contract, 250 to 300 bushels. He paid $650; would take-half the sum for it. They have generally given dissatisfaction ; the defect is in the machine.
    
      Dr-. Sparkman's deposition — Made a contract with plaintiff for a machine. Paid two hundred dollars before it was tested. It did not perform to contract. Gave his due bill for #100, payable when the machine worked. Gave back the machine for the due bill; would not have one at all. 1 Plaintiff desired witness would say nothing of the return of the machine; because defendant would use the circumstance against him.
    
      Cross Interrogation — His brother had the management of it. He said the work was 145 bushels; and badly done. Plaintiff made a fair trial. Parker found fault with the horses — witness told him to get horses — he notified plaintiff to take away the machine. Has heard Axon has one, but don’t know how it works — never heard plaintiff’s machine well spoken of, except by Mr. Poinsett.
    
      Mr. John Rutledge, sworn — ¡Plaintiff put one up for witness — it never performed according to expectation, and is abandoned. It was a failure.
    
      Cross-examined — -He paid for it in the spring of 1845, at different times. The contract was for 250 bushels. -The crop of 1845, &c. threshed out with the machine and flails. This year it is out of order. It worked all the crop of 1846. Believes the average was 175 bushels.
    Respecting the Santee machine — Munnerlyn deposed that the machine was put up in January or March, 1843., He had seen it work, and had it in charge in August, 1844. It has not threshed over 70 bushels since he had charge of it — average, 30 bushels. It was not an entire day in order. Had a good team, and machine put in order, at expense. It is abandoned, because useless. The corn-mill was not attached. It was returned to plaintiff, at his request. Plaintiff proposed to compromise — advised the use of mules — defendant offered plaintiff a dollar per day if he would superintend and make it work.
    
      Cross Interrogatories — He can’t say how long after it was put up, it broke — not two weeks before, it got out of order. After he took charge of it, had an opportunity to judge of the machine. The letter of this witness to the plaintiff was read, dated 12th April, 1843. In it, the machine was spoken of favorably — the rice was said to be well threshed — no dust— neatly put up. The witness did not hear defendant express himself satisfied — not altogether. Defendant was not satisfied with the machine. The teeth were badly put into the bed of the cylinder, and broke it. Plaintiff’s repairs did' more harm than good. Interrogations in reply — Witness was employed by defendant in August, 1844. The machine broke because it was too slightly built, and was of a bad construction. Has heard defendant complain — -would not now give the certificate — plaintiff did no more in the way of repair than he was bound to do. Witness had not charge of the mill when his letter to the plaintiff was written. The machine is not worth the room it occupies in tire barn.
    
      John King’s deposition- — -Has attended to the machine— it never threshed 240 bushels — it has never cleaned 70 — the average 30. It is useless, and abandoned. The corn-mill was sent to Charleston — after the machine worked badly, the plaintiff advised the use of mules. Defendant offered plaintiff $ 1 per day if he would make it work; plaintiff refused.
    • Cross Interrogatories — Is aged 21 years, and has been in defendant’s service since August, 1844.- Has experience in managing the machine. Has seen Parker there twice; not over two days.
    
      J. M. Hux’s deposition — In 1843 was employed by defendant as under overseer. The machine worked well— threshing 250, 60 and 70 bushels a day. Has seen it threshing whole days. Has seen defendant overlooking the work —at first he said the mill worked well — rice well threshed. Witness knows it was broken and repaired by plaintiff; thinks it was broken soon after it was put up. It was used for the crop of the previous year. The first team was bad. Then good mules were procured. The oil was bad. The negroes worked extra work, morning and evening — one hour to one and a quarter, in the morning. The mill hands not sufficient — field hands assisted to remove the straw.
    
      Cross Interrogatories — Plaintiff put up the machine after witness went to defendant’s — witness left defendant’s employment in August. The greater part of the crop was threshed out. The team was too slight and the oil too thick. Witness measured the rice every day. When defendant said he was satisfied, witness don’t know if he meant with the quality or quantity. After some time, defendant was dissatisfied with the machine, but witness don’t recollect the reasons. It worked better in dry than wet weather — threshed 250 bushels in good weather. The bands stretched, the teeth fell out, and the pulley wheel got broken, and was mended by plaintiff. He thinks it was as capable of working the last day as the first. Interrogatories in reply — 'The witness was discharged from defendant’s .employment in July, on friendly terms. He. heard no. objection from defendant about the quantity. Heard plaintiff complain of the team. He reported to Williams, the overseer, the quantity threshed. The teeth • dropped out once; that was not plaintiff’s fault. *
    ' Mrs. E. A.- Williams'1 s deposition — Is the widow of the ¡overseer ;"aged'26 years.-. Hux was under overseer from January to July,-1843. He reported 130 to 160 bushels threshed. Williams complained. Parker said the mill threshed 230 bushels; but witness would not admit it did so much. This witness would not believe Hux on his oath.
    
      Rev. Mr. Forest sworn — Said Mrs. Williams had been brought up in his family as a nurse. She was of good character, and would not be swayed by prejudice in giving her testimony.
    
      Mr. William Mathews, sworn — Knows Hux; heard him say defendant’s mill was good for nothing. Does not recollect Hux mentioned how much it threshed. Hux said it was badly constructed. This was probably in the year 1845.
    
      Mr. Coffin proved the return of the Santee corn-mill to the plaintiff.
    The jury were directed, by the Presiding Judge, to inquire whether the threshing machines failed to perform according to the contract, by reason of any defect or unsuitableness in the plan, or from defective construction, or from unskilful or careless management. The evidence applicable to these several points of inquiry, was brought to their attention. The evidence to support the charge for repairs was so. feeble, that that item was not greatly urged for the plaintiff, The corn-mills failed, and the jury were advised to find for. the defendant on the demand for the Santee mill, which had; been returned to the plaintiff. But they were instructed tha.t though the plaintiff’s contract was to make a corn-mill, and attach it to the threshing machine, so as to be worked by that machinery, and though the mill failed to work when so attached, and had been displaced, yet the plaintiff was entitled to recover for the mill on Peedee, which the defendant had not returned, or tendered to the plaintiff; and which was still in defendant’s possession. That without such tender or return, the contract was not rescinded; and defendant was liable for the benefit derived from the partial execution of ■the contract, in the possession of the mill.
    A verdict was rendered for the defendant, and the plaintiff appealed and moved for a new trial, on the ground that the verdict of the jury was contrary to law and the evidence, and the charge of his Honor, the presiding Judge,
    1st, Because it was proved that two two-horse machines, for threshing rice, were sold and delivered by the plaintiff to the defendant, at the stipulated price of $600 each, in the years 1843 and ’44, for which the defendant' had paid, on' account of one of them, $660, and of the other, $400; and it was also proved that the defendant had kept possession of the said machines, and still had them when the action was commenced, in 1846; and there was no evidence whatever of any rescission of the contract, or offer to return the machines on the part of the defendant.
    2d, Because it was proved that two corn-mills were sold and delivered by the plaintiff to the defendant, on his plantations, at the stipulated price of $85 each, and there was no evidence whatever of the return, or the offer to return, of more than one of them by the defendant.
    3d, Because, according to the evidence, the plaintiff was entitled, at least, to a verdict for $325, being the balance due for the price of the two machines and one of the corn-mills; and even if the Court should consider that the jury, under the circumstances, may have been authorized to find against the plaintiff in respect to both of the corn-mills, they were bound, according to the law and evidence, to find for the plaintiff the sum of $240, being the balance of the price due for the threshing machines.
    Northrop, for the motion.
    There was never any disposition manifested, on the part of the defendant, to return the mills, or rescind the contract. As soon as the machines were accepted the contract was complete, and plaintiff should have had notice of failure and tender of the property. The verdict was one of prejudice, and we should have a new trial. — Cash v. Giles, 14 E. C. L. ft. 372. The party should have an opportunity of taking his property back. Carlin fy Harden v. Walker, 2 Rich. 40, does not decide that this should not be done. The buyer should show his disposition to do justice by the tender, and then he is entitled to a mitigation of damages in a suit for the price. — Milner v. Tucker, 11 E. C. L. R. 300; Peake’s Ev. 233 and 248; 1 Camp. 40, note, and cases cited. In Growning v. Mendham, 2 E. C. L. R. 380, testimony of insufficiency was rejected; because there had been no tender.
    Pbingle, contra.
    
    This case was brought in assumpsit, and the damage claimed is the special contract. In Cash v. Giles there was no warranty, and in Milner v. Tucker there was no express stipulation for a particular room. A warranty allows the defendant to prove a breach in mitigation of damages. — Chit, on Con. (new edition) 485; 2 E. C. L. R. 122; 7 East, 480 and 481. The breach is sufficient in mitigation, without the return of the article purchased. Carlin Harden v. Walker, shows rescission to be not necessary when the contract is open, even to the entire reduction of the price in mitigation. Ashley v. Reeves, 2 N. & McC. decides that an action may have been brought on the breach in this case. This is, in fact, an action of damages. The jury found nothing,.^evidently supposing the plaintiff sufficiently paid.
   Evans, J.

delivered the opinion of the Court.

It is very clear that, by the common law, in an action by the seller for the price of any article sold and delivered, the buyer cannot defend himself on the ground that there has been a breach of the warranty, unless he has returned it or tendered it back — the cases wherein a tender will suffice for this purpose, are set down in Carlin & Harden v. Walker, 2 Rich. 40. Nor can he recover back the purchase money in an action for money had and received in those cases where it has been paid, but in all cases where he retains the article purchased, he must pay the price and sue for a breach of the warranty. The contract must be at an end before the buyer can defend himself for a breach of the warranty, or sue in general assumpsit. But a set off or discount is a cross action, and it has always been held in this State that a purchaser may defend himself by discount against an action for the price, by proving a breach of the warranty. Our discount law is more comprehensive than the English statute of set-off, and sufficient to embrace this species of defence. In this case the pleadings have not been brought to the view of the Court, and I presume the defence on the Circuit was offered under a proper state of pleading. The question argued was, whether the defendant could in any case avoid •the payment of the whole price without a return or tender. In the case of Carlin 8f Harden v. Walker, it is suggested as prudent that the offer to rescind should be made, but all our cases agree that an action may be brought for breach of warranty without a tender or return, and the same rule applies when the same defence is made under our discount law. The effect is, that the buyer keeps the article purchased, but he must pay for it such price as it may be worth in its unsound or defective state. Under this view of the law it is very clear the defendant was entitled to have an abatement of the price on account of the deficiency of the thresher and mills, for the price of which he was sued, if the evidence satisfied the jury that there was a breach of the warranty. In cases like this, there are two issues. The first is on the plaintiff’s case: has there been a sale, or what was the price to be paid. The second is on the defendant’s discount: — -1. Was there a warranty? 2. Has there'been a breach? 3. How much is the article diminished in value by the breach of the warranty? In this way the issues between the parties are decided, and the jury render a verdict for so much as the thing is worth. If the breach of warranty be established, or if, as seems to have been the case here, the purchaser was already paid as much as the articles sold are worth, the verdict should be for the defendant. We do not see that any rule of law has been violated by the verdict, and the motion for a new trial must be dismissed, and it is so ordered and adjudged.

Richardson, J. O’Neall, J. Waedlaw, J. Frost, J. and Withers, J. concurred.

Motion refused.  