Everett v. Gray

Decided October 15, 1804

Massachusetts Supreme Judicial Court · decided 1804-10-15

<p>Where the defendant has, without objection at the time, accepted articles manufactured for him, he is not entitled, in an action brought against him for the price of the articles, to show in evidence that the workmanship was bad ; but his remedy is by a special action on the case for the fraud and deceit in the workmanship.</p>

Decided 1804-10-15

¶1The whole Court (Strong, Sedgwick, Sewall, and Thachei, justices) ruled, that as the defendants had accepted the locks without objecting to them at the time of delivery, it was not competent to them to go into this defence in this action ; but their remedy would be by a special action of the case against the plaintiff for the deceit and fraud in the workmanship. The defendants were defaulted, and damages assessed for the whole sum demanded in the count upon the special agreement, (a)

¶2 [Such defence is good in case of a sale with warranty. Cormack vs. Gilles, 7 East, 480. — King vs. Bosson, ib. 481. — Germaine vs. Burton, 3 Starkie’s Rep. 32. — Baston vs. Butter, 7 East, 480. — Street vs. Blag, 2 B. & A. 456. — Dodge & Al. vs. Tileston & Al, 12 Pick. 358. — Ed.]