
    *Samuel Hitchcock and others vs. Edward P. Hunt.
    A sold to B a quantity of pork in barrels, with a warranty that the barrels would not leak. B stored the pork in a suitable place, but found after-wards that some of the barrels were leaking. In order to preserve the pork he filled the leaking barrels from time to time with new brine, but they continued to leak, and a considerable quantity of the pork was spoiled. B gave no notice to A of the condition of the barrels, nor did he offer to return the pork. It was an established practice among persons dealing in pork, where the leaking of the barrels continued after they had been filled with new brine, to take out the pork and repack it in new barrels. It did not appear whether B had any actual knowledge of this practice or that he knew the necessity for repacking the pork. In a suit brought by A for the price of the pork, in which B claimed a deduction from the price, of the damages to which he was entitled for a breach of the warranty, it was held, that the only deduction to which B was entitled was the sum which he would have been compelled to pay for new barrels in the place of the leaky ones, and for the repacking of the pork in them.
    If B, without any knowledge that the barrels were leaky, and without any want of care in informing himself of their condition, had suffered the pork to remain in the barrels a reasonable time, and it had thereby become spoiled, he could have recovered, in an action on. the warranty, the value of the pork spoiled.
    But as he knew that the barrels were leaky, and might have prevented the injury to the pork by procuring new barrels and repacking it, the loss of the pork should be regarded as attributable to his own want of care rather than to the defect of'the barrels.
    If B had no actual knowledge of the practice of repacking pork in such cases, he could by reasonable inquiry have acquainted himself with it, and it should be presumed that he had knowledge of it.
    It is well settled in this state that a vendee of personal property warranted, need not sue upon the warranty, but may reduce the vendor’s damages in a suit brought for the price, by showing how much less the property was worth by reason of the defect warranted against.
    But whether he can also show further damages sustained by him in consequence of the breach of the warranty, or must resort to an action on the warranty: Quere.
    
    Assumpsit, for a quantity of pork in barrels sold to the defendant. The defendant pleaded the general issue, with notice that he should show on the trial that the barrels, which were sold with the pork, were warranted not to leak, and that they prove to be leaky, and that considerable part of the pork was lost-in consequence, and that he should claim damages for [ *344 J *the breach of the warranty, to be applied in reduction or extinguishment of the plaintiffs’ demand. The case was referred to an auditor, who found the defendant indebted in the sum of $380.44—the amount of the plaintiffs’ original account after applying certain payments thereon, and after deducting the sum of $1.75 for each barrel that proved leaky. The defendant remonstrated against the acceptance of the report, and on the hearing of the remonstrance the court found the following facts.
    Upon the purchase and sale of the pork the plaintiffs ipade to the defendant ah express warranty that the pork was well packed, and that the barrels would not leak. The price agreed upon ■was the fair price for good pork, well packed in good barrels. The pork was received by the defendant, soon after its purchase in the month of January, and was by him properly stowed in a suitable place until the succeeding spring, in the course of which the defendant found that a considerable number of the barrels were leaky, and that by reason thereof the brine had escaped from them, and in order to preserve the pork he procured the assistance of persons experienced in the care of pork, and filled up the leaking barrels with new brine, and afterwards, from time to time as the brine leaked out, filled up the leaking barrels with new brine, in good faith intending and expecting thereby to preserve the pork; but the barrels continuing to leak, about thirty barrels of the pork were either entirely spoiled, or so greatly injured that the deterioration in value amounted to more than the whole balance claimed by the plaintiffs to be due to them for the price of the pork. The defendant gave the plaintiffs no notice of the leaking of the barrels, and made no offer to return the pork or any part of it, and made use of no other means for the preservation of the pork than as above stated. There is an established usage and custom in the care of pork in barrels, which requires that, when the barrels are found to leak to such an extent that the leaking does not cease after the barrels have been once or twice filled up with brine, the pork should be taken out and repacked in new and tight barrels with new brine. Such repacking is *necessary under such [ *345 ] circumstances for the preservation of the pork, and is usually resorted to, and would have preserved the pork in question. The expense of such repacking would have been one dollar" and seventy-five cents per barrel. Whether the defendant in fact knew of the custom to repack pork under such circumstances, or of the necessity for so doing, was not proved. No fraud was imputable to either party in any part of the transaction.
    Upon these facts the superior court accepted the report, and rendered judgment for the plaintiffs to recover the amount found due by the auditor. The defendant thereupon brought the case before this court by motion in error.
    Peet, for the plaintiff in error. '
    1. The law is well settled, that in an action by a vendor of. personal property warranted, to recover the price, the vendee may set up the breach of the warranty in defense, and is entitled to a deduction from the plaintiff’s demand of the amount of the loss which he has sustained by the breach of the warranty, McAlpin v. Lee, 12 Conn., 129. Kellogg v. Denslow, 14 id., 411. The law allows this to prevent circuity of action.
    2. Under a warranty of personal property, the law does not require notice of the defect, or an offer to return the property, to enable the vendee to avail himself of the breach of warranty in his defense, in an action for the price. Kellogg v. Denslow, supra. Dean v. Mason, 4 Conn., 428. Nichols v. Alsop, 6 id., 477. West v. Cutting, 19 Verm., 536. Milton v. Rowland, 11 Ala., 732. 1 Swift Dig., 382, 3.
    3. The defendant is not affected by the custom found to exist. Here there was an express contract that the pork was well packed in good barrels, and that the barrels would not leak. The defendant thus protected himself against the necessity of informing himself as to the mode of treating leaky barrels, and had no occasion whatever to inquire with regard to the practice of dealers in pork in such cases. It is not found that he had any knowledge of this custom, and he in fact had none. [ *346 ] It is found that he acted in good faith, *and did what he thought was the best that could be done for the preservation of the pork, and this with the assistance of those experienced in the care of pork. The plaintiffs had warranted him against the necessity of doing what they now claim that he ought to have done, and having acted in good faith, and done the best that he knew how to do, he should not be regarded as in fault. Glendale Manufacturing Co. v. Protection Ins. Co., 21 Conn., 19. Leach v. Beardslee, 22 id., 404. Clark v. Baker, 11 Met., 186. Cooper v. Kane, 19 Wend., 386. The loss of the pork was attributable to no fault of the defendant, but wholly to the leaking of the barrels, and is a direct damage resulting from the breach of the warranty. Borradaile v. Bronton, 8 Taunt., 535.
    
      Hubbard and Ransom, for the defendants in error.
    1. The plaintiff in error has no ground of complaint, because he did not elect to disaffirm the contract, by an offer to return the property, or give notice of its defects; and he is therefore not in a condition to withhold any part of the contract price. It is admitted that it is not necessary for a vendee to offer to return the property, or give notice, to enable him to maintain an action upon the contract of warranty. ■ The rule is, that he may either affirm the contract, and liquidate his damages by an action on the warranty, or offer to rescind and annul it, and withhold the contract price. 1 Swift Dig., 718. Chitty on Cont., 362, 3, 4. Russel v. South Britain, Society, 9 Conn., 508. Pulsifer v. Hotchkiss, 12 id., 234. Kellogg v. Denslow, 14 id., 411, 423. Terry v. Bissell, 26 id., 23.
    2. But the vendee, under the line of defense adopted by him before the auditor, was allowed the same advantage as if he had given notice, and was permitted to reduce the contract price to the actual value of the goods warranted at the time of sale. The auditor deducted the sum of $52.50 for the defects of the barrels and cost of repacking.
    3. The auditor has allowed to the vendee all the damage he sustained by the breach of the warranty. The damages béyond the sum allowed were not the result of the breach of *the contract of warranty, but of the neglect of the [ *347 ] vendee; and it wras his own fault that the property perished, as it was under his care and control, and out of the power of the vendors to protect it, they having had no notice that the barrels were leaking. It was the duty of thé vendee to rise reasonable diligence to preserve the property, and it appears by the facts found that he did not use reasonable care.
   Stokrs, C. J.

We do not think it necessary to determine whether the warranty in this case is confined to the condition or quality of the barrels when they were .sold to the defendant, or extends to their condition at a subsequent time; because, in either of these cases, we are of the opinion that, on the finding of the auditor, there was a breach of the warranty, and that he adopted the correct rule of damages. He allowed to the plaintiffs the price agreed on for the property, deducting the expense of putting it in as good a condition as it was warranted to be. If the defendant had paid for the property, the amount so deducted would have been the rule of damages in an action brought by him on the warranty. It is not however necessary, w’here personal property proves to be inferior in quality to what it was warranted to be on its sale, that the vendee should pay' the price and resort to an action for the breach of the warranty; for, whatever may be the rule adopted élsewhere, it is well settled here that he may, in an action like the present, brought against him by the vendor for the price, reduce the damages by showing how much less the property wás worth by reason of its not corresponding with the warranty. McAlpine v. Lee, 12 Conn., 129. Kellogg v. Denslow, 14 id., 411.

The defendant, however, claims that he was entitled to a deduction, not only to that extent, but that the plaintiffs ought not to have been allowed any thing for the pork which was spoilt in consequence of the worthlessness of the barrels which constituted the property of which the quality was warranted by the plaintiffs. Without inquiring whether, in an action for the price of goods sold with a warranty as to their quality, the defendant can show, in reduction of damages, not only how [ *348 J *much less the property was worth by reason of a breach of the warranty in that respect, but further damages sustained by him in consequence of such breach, (see Mondel v. Steel, 8 Mees. & Wels., 858,) we are of the opinion that, on the facts in this case, the defendant, if he had paid for the pi’operty bought, could not, even in an action on the warranty, have recovered for the value of the pork lost by reason of the defect in the barrels, and therefore that he was not in this action entitled to any deduction for that loss. If, having paid the price, the defendant, without any knowledge that the barrels were defective, his ignorance not being imputable to the want of reasonable care, had suffered the pork for a reasonable time to remain in the barrels, and it had been thereby injured, he could have sustained an action against the plaintiffs for such damage on the warranty. To this effect only is the decision in Borradaile v. Bronton, 8 Taunt., 535, (S. C., 2 J. B. Moore, 582,) which has been cited by the defendant. The only question made or decided in that case was, whether on the warranty there in question, the plaintiff was entitled, on its breach, to recover for the value of both the cable and anchor, or of the former only, and the decision of it did not turn on the inquiry whether the plaintiff, when he affixed the cable to the anchor, knew of the defectiveness of the cable, but upon another principle, and that entirely of a legal character.

That case is analogous to the present only in the respect that there the cable was designed to perform an office to the anchor similar to that of the barrels in this case to the pork, and from the report of that case it is plain that it did not appear and was not claimed that the plaintiff had any knowledge of such defectiveness. But if that fact had appeared, as it does in the present case, we can not doubt that the court would have considered the loss of the plaintiff as imputable, not to any misplaced confidence in the strength of the cable, superinduced by the warranty, but as a wanton and voluntary sacrifice by him of his property, the consequence of which he alone should bear. So in the case now before us, it being found that the [ *349 ] defendant, after having ascertained that the *barrels were so defective that the pork could not be preserved in them, suffered it to remain in them without any effort to procure others in their stead, ás he might have done, and that it was spoilt from that cause, we are clearly of the opinion that the loss is to be atributed to the carelessness of the defendant, and that therefore he could sustain no action against the plaintiffs on the warranty.

The principle applies in its full force which was adopted in Hordern v. Dalton, (1 Car. & P., 181,) which was an action against a post master on his agreement to deliver to the plaintiffs, in a particular mode, their letters which he should receive at his office, and where it appeared that by mistake such a letter, containing a returned bill of exchange, was not delivered for one or two days, and that in consequence of such delay notice could not be given of its dishonor in due time by post, but that the plaintiffs could have given such notice in time if they had sent a special messenger for that purpose ; and Abbott, C. J., directed a nonsuit, on the ground that it appeared that due diligence could have been used by the plaintiffs which would have prevented the loss. While the defect in the barrels in this case was unknown to the defendant, his ignorance not being imputable to a want of reasonable care, he might rely on the warranty, and could resort to the plaintiffs for the injury to the pork during that time ; but, when the defect came to his knowledge, he should have repaired it if practicable, or, if not, have prevented the injury it would produce, by procuring new and good barrels in the place of those he purchased. For the expense incurred by him in doing so, and for that only, he could resort to the plaintiffs; because, by such expenditure, he would have been placed in as good a condition as if the warranty had not been broken, and by receiving that amount he would therefore be fully indemnified.

The justness of these principles, upon which, rather than on any technical grounds, damages ought to be assessed, is obvious. The property in the barrels, as well as in the pork, vested by the sale indefeasibly in the defendant, notwithstanding the warranty, which was executory merely and rested only in contract. If he had a *right to return the property on [ *350 ] discovering the defect in the barrels, (a point unnecessary to be examined,) he was not obliged to do so, and might keep it and rely on his warranty. This the defendant did in this case, and, for aught we can see, the pork, although originally bought with the barrels, is to be considered, as to the present question, in the same light as if it had before belonged to the defendant or had been obtained by him from any o'ther quarter. He assumed the care of it upon himself as his own property, and might have kept it in the barrels in which it was bought or in any others, or indeed done with.it as he chose. In that respect the plaintiffs had no right to interfere. They sustained no relation to the defendant analogous to that of his bailor. . It would be very difficult to find any principle of law by which, while it was in the' possession of the defendant as its owner, the plaintiffs, without his consent,.would be justified in doing any acts with it ; and they clearly would not be.bound to do any such act even on the owner’s request. The contract did not require them to do any specific act', but only to indemnify the defendant in money for his damages resulting from the breach of the contract. Under the rule claimed by the defendant the pork might be wantonly and carelessly suffered by him to be spoiled and the plaintiffs inevitably subjected for its value.

We can not consider it necessary to confute a position, so preposterous. As well might it be claimed that a person who should buy a ship warranted sea-worthy, and, after discovering its deficiency in this respect, should place-his goods in it for transportation, could, on their loss from such cause, recover of the vendor their value ; or that one who should huy an animal with a warranty against some dangerous habit, or a carriage with a warranty that it was safely built, and, in one case should afterwards, knowing that the animal had that habit, intentionally expose himself to its exercise and receive a personal injury, or, in the other, knowing that the carriage was not safely constructed, ride in it and get hurt, could recover of the vendor on his warranty for such injury. In these and similar cases the injury is considered, and properly, as not arising directly from the [ *351 ] defect *warranted against, but rather from the want of reasonable care on the part of the purchaser, and for which he has no claim on the warranty. The principle upon which we have thus placed our decision of the case, is adopted in Loker v. Damon, 17 Pick., 284, and Miller v. Mariners’ Church, 7 Greenl., 51, as well as in the case of Hordern v. Dalton, already referred to.

In this case the auditor has found that it was necessary to repack the pork in new and tight barrels with new brine, that such was the established usage and custom in cases like the one in question, (of which the defendant must be presumed to have been conversant, and of which he might with due-inquiry have acquainted himself,) and that such a course would have preserved it; and as, according to the rule adopted in actions like the present, to recover the price of goods sold with a warranty of their quality, the defendant was entitled, to a deduction of the same sum that he would recover for the inferior quality of them, if it were an action brought by him on the warranty, the decision of the auditor which proceeded on that rule was correct, and there is nothing erroneous in the judgment complained of.

In this opinion the other judges concurred; except Sanford, J., who having tried the case in the court below did not sit.

Judgment affirmed.  