
    Thomas L. Moore v. Samuel Woodside and others.
    "Where the defendant, in an action for the price of goods sold, sets up in his answer, and as his only defense, that the goods were sold by sample, and were inferior to the sample to a specified amount, the court is authorized, under section 376 of the code, as amended March 13, 1872 (69 Ohio L. 44), to render judgment for the amount so admitted to be due, and continu'' the cause as to the counter-claim, or amount in dispute.
    Motion for leave to file a petition in error to the District Court of Logan county.
    This was an action to recover the price of goods sold. 'The defendant set up in his answer, and as his only defense, •that the goods were sold to him by sample, and were infexior to the samples in a specified amount, and offered to confess a judgment for the agreed price of the goods less that amount. The court thereupon, on motion of the plaintiffs, rendered a judgment against the defendant for the amount so admitted to be due, and continued the cause as to the amount in dispute. On error to the District Court, this judgment was affirmed, and the defendant (plaintiff in error) now seeks to reverse the judgment of the District Court.
    
      McLaughlins &¡ Low, for the motion.
    West, Walker $ Kennedy, contra.
   By the Court.

The question presented is whether such a judgment and proceeding are authorized by section 376 of the code of civil procedure, as amended March 13, 1872 (69 Ohio L. 44). We think they were. The defense is, in fact, a counter-claim, and not a mere denial of the amount of damages. The defendant, in effect, sets up a warranty of the goods, and a breach of that warranty, resulting in damages less in amount than the price agreed to be paid for the goods. We think such a case comes fairly within the intent and meaning of the section referred to.

Motion overruled.  