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Publication Date

12-1951

Document Type

Survey Article

Abstract

By far the greatest number of sales cases of interest were those involving warranties. Two of the cases show that treating an action for breach of-warranty as a contract action rather than as a tort has important consequences. In C. M. Miller Co. v. Ramey, plaintiff's action on an open account was met by a set-off arising from defendant's expenditures in obtaining the release from condemnation of flour plaintiff had represented had no g6vernment action pending or contemplated against it. Plaintiff urged that defendant's demand sounded in tort (fraud and deceit) and could not be set off against plaintiff's contract claim. At the trial, evidence of each party was substantially undisputed, but judgment was rendered for the full amount of plaintiff's claim. On appeal, the court held that the set-off was based upon plaintiff's warranty of his right to sell the goods and the implied warranty that the goods were reasonably suited for the purpose of which sold, and therefore was in contract. As a consequence, defendant's claim could be set off, and a verdict based upon the difference between the two claims should have been directed.

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