
    E. W. Merck White Lead Company, Defendant in Error, v. William McGahey, Plaintiff in Error.
    Gen. No. 15,301.
    
      Recoupment—to whom, defense available. The defense of recoupment is available as well to the guarantor as to the principal debtor.
    Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1909.
    Reversed and remanded.
    Opinion filed January 6, 1911.
    Charles O’Donnell, for plaintiff in error.
    Charles Daniels and Sumner C. Palmer, for defendant in error.
   Mr. Justice Smith

delivered the opinion of the court.

The Merck "White Lead Company, defendant in error, brought an action against William McGahey, plaintiff in error, on his guarantee of the payment for goods sold to M. E. Orser & Co. and J. D. Cochrane by the Lead Company, relying upon the guarantee. Orser & Co. and Cochrane declined to pay for the goods on the ground that they were inferior to the standard and quality warranted.

The defendant, plaintiff in error, offered evidence on the trial tending'to show the inferior quality of the goods delivered to Orser & Co. and Cochrane, and that they were not as represented when the purchases were made. The court ruled out the testimony and instructed the jury that if the defendant, plaintiff in error, agreed to guarantee the payment for the goods, and that the goods had not been paid for, they should find for the plaintiff. The jury returned a verdict for plaintiff and the court entered judgment on the verdict.

It is beyond question the law that in an action against Orser & Co. or against Cochrane for the price of the goods, the defendant would be entitled to show in defense of the action, or in reduction of damages, that the goods delivered were of inferior quality and were not equal in quality and durability to the goods ordered. The plaintiff in error, when sued on his guaranty of payment, was entitled to make the same defenses in this regard as the purchasers could make.

The court erred in excluding the evidence. The judgment is accordingly reversed and the cause is remanded for a new trial.

jReversed and remanded.  