By the Court,
Marcy, J.I am inclined to think that the objection to the books of account as evidence was not well taken; but it is not necessary to settle that question, because there was abundant proof without the books to establish all the items of the account. Two witnesses testified to the acknowledgement of the defendant as to the correctness of all the items, except those which related to the cooking stove and its appendages; and as to the sale of those, there was no question made at the tidal.
The instruction of the court, to the jury to allow interest appears to me to have been correct. The objection to the allowance of any interest whatever was overruled by the court and the decision excepted to. There was an express agreement for interest as to the cooking stove. The objection so far as it related to this item of the account was clearly unfounded. But it is contended that the court erred if there was any item on which interest could not be legally charged. I doubt this proposition. If counsel will not discriminate in their objections so as to draw the attention of the court to what is conceived to be objectionable in the decision made, they are precluded from urging it as a cause for reversing the judgment. On a part of the account interest was allowable, on another part the defendant contended it was not; he made a general objection to the charge for interest. If the court had allowed the objection, they would have erred, because on one part of the account interest was chargeable : and it is contended they erred in disallowing the objection, because on another part it was not a legal charge. The objection was not sufficiently discriminating ; it should have been only to an allowance of interest on that portion of the account which the defendant conceived *490did not draw interest. I do not think the charge of interest 0n any part of the account objectionable. The plaintiff proved that the defendant was one of his customers, and that he always charged interest on- his accounts after ninety days. The nniform custom' of a merchant or manufacturer is presumed to be known to those who are in the habit of dealing with him, and in their dealings are supposed to act with reference to that custom.
The main question in this case-is, that which arises on the decision of the court excluding the evidence of the breach of the warranty on the sale of the cooking stove. This evidence was offered for two objects; first by way of setting off the damages for the breach of the warranty; and secondly to shew that the stove was of less value than the price agreed to be given for it. In relation to the first, the court below lay down the general proposition that damages arising from a breach of warranty in such a case as this cannot be set off'in an action brought for the price agreed to be given ; and as to the second, they say that where there is an absolute unconditional sale with warranty for a stipulated price without fraud, a breach of the warranty cannot be given in evidence to reduce the price below the sum agreed to be paid. It was admitted that if there had been fraud imputable to the defendant, the plaintiff would not be, as without fraud it was contended he was, obliged to resort to his cross action, but might reduce the claim below the stipulated price, by showing the stove not to be such as it was warranted to be.
Upon what principle are the damages for the breach of the warranty allowed in a case where there is fraud to be given in evidence to reduce the recovery below the stipulated price 1 Not on the ground of set off, because these damages are unliquidated. Is it upon the ground that the contract is destroyed by the fraud 1 If it is, rendered void, upon what principle can the vendor recover at all ? I know it has been said he recovers upon a quantum, meruit or quantum valebat; but if there was no contract by reason of his fraud, there was no sale; no passing of title. Can an implied sale be set up in lieu of the express one 1 This I think' may well be doubted, although the express contract may be void. *491The case of Beecker v. Vrooman (13 Johns. R. 302,) seems to have been put upon the ground that the sale was valid. The language of the court does not countenance the idea that the question in that case was the mere value of the horse. It is there intimated that a different rule now prevails from what formerly governed, which commends itself to the court, because it is calculated to do final and complete justice between the parties most expeditiously and least expensively; but if the parties were proceeding without regard to the express contract upon an implied one, and were only establishing the true value of the horse, there was no new rule, and the language of the court was not very appropriate to the question before them. In the case of Leggett v. Cooper (2 Starlde’s N. P. 93,) where the counsel for the defendant resisted the recovery on a contract for the sale of hops on account of fraud, Lord Ellenborough said, “ if there is no contract for the sale of the goods at the stipulated price, there is no contract upon the quantum meruit for goods sold and delivered.” The action in the case of Frisbee v. Hoffnagle, (11 Johns. R. 50,) was on a note given for the consideration of a deed with warranty for land. The defence was> that the vendor had not title, and it was allowed to prevail» not upon the ground that the contract for the sale was invalid by reason of fraud, but for the purpose of avoiding circuity of action.
The decision in the case of Spalding v. Vandercook (2 Wendell, 431,) does not I apprehend proceed on the ground of fraud alone. The consideration of the note was the fulfilment of the contract to deliver barrels. If the whole contract was cut up by the fraudulent conduct of the plaintiff the note was entirely without consideration; but it was not so considered. So, in the case of Burton v. Stewart (3 Wendell, 236,) there was fraud in the sale of the horse, yet the note given on the sale was not adjudged to be without consideration. The contract was broken, but it had a valid existence; and the court entertained no doubt in that case that if there had been a proper notice, the amount of the recovery would have been greatly abated by the proof of what *492was offered ; it was, however, rejected for the want of such no^ce-
From an examination of the cases, I am satisfied that in those where the damages arising from a breach of a warran- . , - ° ° . ty in the sale ot chattels have been allowed to be given m evidence by the defendant to reduce the amount of recovery below the stipulated price, the decisions of the court have not proceeded on the ground that the express contracts were void by reason of fraud, and that the recovery was had upon a quantum meruit, or quantum valebat upon implied contracts, but upon a principle somewhat different from either of those adverted to in this case by the court below ; upon a principle which has of late years been gaining favor with courts, and extending the range of its operations. Such defence is admitted to avoid circuity of action. A second litigation on the same matter should not be tolerated where a fair opportunity can be afforded by the first to do final and complete justice to the parties. If a defence resting on such a principle is allowed, as I think it is, in a case of a warranty mala fide, I see no good reason for not allowing it in a case of a warranty bona fide. The effect would be as salutary, and the inconveniences arising therefrom would be as few in the one case as the other. The distinction contended for on the part of the defendant here is recognized, I admit, in many cases, and some of them of high authority ; but in others, and those mostly of a more recent date, it seems to me to have been disregarded.
Where a seedsman sold seed and warranted it of a particular sort and quality, it is said Lord Kenyon thought the damages for a breach of the warranty might have been given in evidence in the action for the stipulated price in reduction of it, although on the trial of the action for the price agreed to be given, Buller J. had decided otherwise. (Cormack v. Gillis, referred to in Basten v. Buller, 7 East, 480.) In the case of Fisher v. Samuda, (1 Campb. R. 190,) Lord Ellen-borough suggested that the quality of the beer (which was inferior to that contracted foi) should have been given in evidence in the suit by the vendor for the price, instead of bringing a cross action on the warranty. The reason he as*493signed for this opinion was not that the contract was void for fraud, but that the first suit afforded an opportunity to do final justice between the parties.
In an action for the price of a horse sold for 12 guineas and warranted sound, the defendant was allowed to reduce the plaintiff’s damages to a very small sum by proving that the horse was not according to the warranty. (King v. Boston, 7 East, 481, n.)
It was said by Woodworth, J. in the case of Hills v. Banister, (8 Cowen, 31,) “If the plaintiff had refused to recast the bell, I incline to think a partial failure of consideration might be a defence in mitigation, although there he no fraud”
The idea that fraud must be shewn to enable the defendant to set up such a defence as that offered in this case, does not appear to have occured to Mr. Starkie when considering this subject. According to his views, “ where the article of sale is warranted, it seems that the vendee is entitled to prove the inferiority and the breach of the warranty in diminution of the damages, although a specific price has been agreed for, and although he has not rescinded the contract in toto, as he might have done by returning the article. This is not open to the objection that the defendant ought to have rescinded the contract in tolo, for from the very nature of a contract of warranty he has a right to keep the goods and recover damages for the breach of warranty.” (2 Vol. of Starkie, 645.) It would be a mistake to infer from the language above quoted, that the rule he lays down applies to conditional sales only. What is said in relation to rescinding the contract is designed to meet and answer the objection which has sometimes been made, that although the sale is absolute, yet if the purchaser finds the article not according to the warranty, he ought not to sustain an action thereon till he has returned or offered to return the property purchased.
I am persuaded that if we should circumscribe the operation of the rule in the manner contended for by the defendant in error here, we should limit its usefulness; but by extending it to cases of sale on warranty without fraud, we shall *494thereby curtail litigation without creating confusion by encroachments upon established principles of law. I am therefore of opinion that the court below erred in refusing the evidence offered by the defendant, and that the judgment ought to be reversed.
Judgment reversed and venire de novo.