Cox v. Wiley

• Decision Date: 22 May 1903
• Citation: 183 Mass. 410,67 N.E. 367
• Parties: COX v. WILEY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

183 Mass. 410

67 N.E. 367

COX v. WILEY.

Supreme Judicial Court of Massachusetts, Suffolk.

May 22, 1903

COUNSEL

Ezra R. Thayer and S. R. Wrightington, for plaintiff.

D. C Linscott and F. K. Linscott, for defendant.

OPINION

KNOWLTON C.J.

This suit was brought in the municipal court of the city of Boston to recover, upon an account annexed, for labor and materials in performing a contract to furnish and set up heating apparatus in the defendant's building, and for certain additional work. The answer is a general denial. Soon afterwards the defendant brought a suit in the same court against the plaintiff for damages for a breach of a warranty in the contract, in which it was averred that the present plaintiff agreed that the heater should be capable of heating the factory to a uniform temperature of 60 degrees Fahrenheit, and that the plaintiff broke his contract, in that he furnished an inferior heater that would only heat the factory to a temperature of 40 degrees. The answer to this suit also was a general denial. The cases were tried together in the municipal court, and judgment was rendered for the defendant in the first action, and for the plaintiff for $1 damages in the second action. The plaintiff in the first action appealed the case to the superior court, and paid and satisfied the judgment in the second action. In the superior court the defendant filed an additional answer, alleging that the satisfied judgment in the municipal court was a bar to the plaintiff's suit. There was no evidence except the record to show what the proceedings in the municipal court were.

The question is whether the record in the second action in the municipal court shows a finding necessarily inconsistent with the plaintiff's claim in the case now before us. That depends upon the construction to be put upon the plaintiff's declaration in the second case. We think it pretty plain that the suit is an action of contract to recover for the breach of an alleged special warranty in reference to the qualities of the heater, and that the declaration contemplates an assumption, in assessing the damages, that the property in the heater passed to the plaintiff in that suit. There is a count to recover as money had and received the payment that the present defendant made towards the cost of the heater; but, taking this in connection with the other averments of the declaration, we think the money is claimed only as a part of the damages for the breach of the warranty. If the facts were as alleged in the second suit the defendant in the first suit, on discovering the breach of the warranty, might avail himself of his rights in either of three ways: He might rescind the contract, return the property, and recover back the money that he had paid ( Bryant v. Isburgh, 13 Gray, 607, 74 Am. Dec. 655) he might set up the breach of the warranty as a defense, in whole or in part, to the claim for compensation in the first suit; or he might pay the claim, and bring a suit for his damages (Hunt v. Brown, 146 Mass. 253-255, 15 N.E. 587; Riley v. Hale, 158 Mass. 240-246, 33 N.E. 491; Gilmore v. Williams, 162 Mass. 351, 38 N.E. 976). He elected to answer only a general denial to the action for compensation,...