
    BREACH OF WARRANTY AS A DEFENSE.
    Circuit Court of Hamilton County.
    Cincinnati & Columbus Traction Company v. Jewett Car Company.
    Decided, June 20, 1908.
    
      Pleading — Erroo—Breach of Warranty — Contracts—What the Parlies Had in Contemplation at Time the Contract was Made — Pinal Order.
    
    That portion of an answer which seeks affirmative relief must be treated as a cross-petition, an<t if the facts therein set forth entitle the defendant to any relief, the defense thus set up is good as against a general demurrer.
    
      
      C. B. Matthews, for plaintiff in error.
    
      Wright & Wright, f or' defendant in error.
    Giefen, J.; Swing, P. J., and Smith, J., concur.
   The Jewett Car Company as plaintiff in the original action set up a contract for the construction of certain railroad cars, alleged full performance, and prayed judgment for the balance due.

The defendant admitted the contract and that it received the cars, but denied each and every other allegation of the petition; and as a second defense and by way of cross-petition pleaded an express warranty and breach thereof, for which it asked dam.ages.

A demurrer to the second defense was sustained and an amended answer and cross-petition being presented to the court for filing, permission was denied, and thereupon the original cross-petition was dismissed at defendant’s cost.

The second defense must as a whole be treated as a cross-petition because affirmative relief is demanded therein (Section 5055, Revised Statutes; Kloun and wife v. Bradstreet et al, 7 O. S., 322). Hence, if the facts stated entitled the defendant to any relief against the. plaintiff, the general demurrer was improperly sustained. The defendant averred in substance that the plaintiff agreed to construct the car of good materials and workmanship and warranted .the same and its several parts fit for the purpose of operating the same on its interurban line; that while so operating the car w'ith due care the brake rod broke, by reason of a defective weld, and the car was precipitated down an embankment and damaged in .the amount of $200 in addition to certain necessary repairs amounting to $167.07, and defendant was deprived, by reason of said breach of warranty and damages to said car, of its use for the period of thirty-nine days, estimated at $25 a day.

The express terms of -the warranty show that the parties had in contemplation, at the time the contract was made, that the brake rod was fit for the use to which i-t was put, and was expected to be so used. The car Mrould'be of little value to the defendant while deprived of the use for which intended. The amount of the damages claimed, and whether the defendant had another car to use in place of the disabled car while being repaired, are questions of fact to be submitted to the jury. It does not appear how much of the damage to the car occurred before, and how much after the car was precipitated down the embankment, nor does it definitely appear that such precipitation was caused by the fracture of the defective brake rod. Enough appears, however, to show some injury to the ear, and some loss of its use by reason of such defect, thereby mailing a pleading good against demurrer. Ice Manufacturing Co. v. Iron Co., 68 O. S., 229.

We entertain-some doubt whether the order complained of is final within the meaning of Section 6707, Revised Statutes, as it does not in effect determine the action nor prevent a judgment, but as the question was not raised by counsel we have so treated it. Holbrock v. Connelly, 6 O. S., 199; Carpenter v. Canal Co., 35 O. S., 307.

The judgment will be reversed for error in sustaining the demurrer to the second defense of the answer and in denying leave to file amended answer.

The cause is remanded for further proceedings.  