This action is brought, on the common count, to recover the price of goods sold and delivered. The evidence on the part of the plaintiffs tended to show that the goods consisted of window glass, in boxes, at a fixed price; that the boxes were not opened; and that the glass was received by the defendant.
We suppose it settled by the modern practice, that to avoid circuity of action, the vendee of personal property may show, in reduction of damages, such ground of deceit or breach of express or implied warranty in the sale, as would be sufficient inlaw to sustain a cross action. On.this principle the defence was founded. Harrington v. Stratton, 22 Pick. 510. Perley v. Balch, 23 Pick. 283. But in order to succeed in such a defence, it is necessary for the defendant to show a case, which would warrant a recovery in some action. The defendant contends that there was an implied warranty on the *562sale, that the goods were merchantable and sound. But we think this position cannot be maintained. The rule of the common law is Avell established, that upon a sale of goods, if there be no express warranty of the quality of the goods sold, and no actual fraud, the maxim caveat envptor applies, and the goods are at the risk of the buyer. Winsor v. Lombard, 18 Pick. 59, 60. 2 Kent Com. (3d ed.) 478.
In the argument, it was contended for the defendant, that he should have been alloAved to prove that the glass was not merchantable. Within certain limits, and with suitable qualifications, Ave think this would be admissible. The contract being for German cylinder glass, we think it Avould be competent to show that the article Avas not such as Avould be known in the market, and amongst those conversant tvith the trade, as glass of that description. Bridge v. Wain, 1 Stark. R. 504. But this inquiry, under such modification, was not prohibited by the judge. The question was asked, without modification, whether the glass was merchantable; not whether it was such as would be recognized by the trade as German cylinder glass, or in what respect it was defective, or failed to conform to that description. The defendant declining to modify his inquiry, we think the question was properly rejected.
The other inquiries, such as Avhether the glass was as good or as valuable as that usually sold for that price, and the like, were rightly rejected; because no warranty of quality is implied from payment of a full price. Parkinson v. Lee, 2 East, 321, 322. Yelv. (Amer. ed.) 21 c. Chit. Con. (5th Amer. ed.) 449.
The defendant, in the argument, objected to the admission of the evidence introduced by the plaintiff, that when glass is sold in boxes, the risk of broken glass is on the buyer. If there were no other answer to this objection, it is a sufficient one, that the evidence of usage was introduced by the defendant, and folloAved on the part of the plaintiff, and on both sides Avithout objection. But the general usages of trade are competent evidence Exceptions overruled.