(dissenting) :—Perhaps in the last resolve there will be no difference among the Court as to the application of the rule of evidence. If it was manifest that there was a general standard or a particular standard especially recognized as applicable to this particular class of moulding, I should at once concur with the majority of the Court. But the language of this order is, “Quality and workmanship to be up to standard.” What *343standard ? Are they to assume that there is a general standard ? Is not that assuming the very question at issue ? Then we will have to go outside of that to find what is meant by it, either a special or a general standard, a standard applicable to this particular species of business, or a standard agreed upon by these parties. How are we to ascertain that ? By assuming in the first instance, that there is a general standard and then refuse to permit the defendant to show a specific standard.
It occurs to me that the burden is upon the plaintiff to show that there is a general standard, a standard applicable to this particular work, or we cannot now exclude what this defendant desires to ask, to show that this standard is a standard agreed upon by the parties, and I think they are entitled to show that. If the plaintiff’s counsel shows that there is a general standard governing the iron or steel trade or a particular standard governing this particular kind of manufacture of iron or steel, then of necessity the burden is the other way. But in my judgment the burden is upon the plaintiff first before we can exclude this testimony.
Upon that ground, I think it is admissible as leading up to that point.
(Exception noted for defendant).
The same witness then testified that there was a distinct understanding between himself and Ryan, representing the plaintiff, that the word standard employed in the contract meant a particular quality of steel knuckles. The witness was then asked ‘ ‘ What was the understanding between you and the plaintiff, with reference to the meaning of the word standard as employed in the contract, and what representations, if any, were made to you by the plaintiff, and how were they made in respect thereto ?”
(Objected to by counsel for plaintiff on the same ground as before stated, viz., that the parties to the contract could not be allowed to say that the word “ standard ” in the contract had any peculiar meaning, for instance as shown in the circular referred to ; second, that the word “standard” as used in the *344contract needed no explanation, it being a word easily understood, the same as the word 1 ‘ good ” or “ best. ’ ’
Crickett vs. Green, 3 Delaware Chancery, 466; Tatman vs. Barrett, 3 Houst., 226; Truax vs. P. W. & B. R. R. Company, 3 Houst, 233; 1 Greenleaf on Evidence, Sec. 283; Taylor on Evidence, Vol. 2, Part 1, Sec. 1148; Boydell vs. Drummond, 11 East, 142; Smith vs. Prujean, 6 Veasey, 360; 2 Phillips on Evidence, * 743; Dale vs. Smith, 1 Del. Chancery, 1.
Defendant’s counsel in reply cited Brown on Parol Evidence, pp. 12, 16 and 179.
Spruance, J:—A majority of the Court rule that question out. (Dore, C. J., dissenting.)
Dore, C. J.,charging the jury :
Gentlemen of the jury :—This is an action of assumpsit on the common counts to recover for goods sold and delivered. The plaintiff’s claim is for 186 knuckles at 3% cents per pound, amounting, as they claim, to $348.20 with interest thereon from July first, 1895.
If you believe from the evidence adduced before you, that knuckles have been furnished by the plaintiffs to the defendants which were to be “ of quality and workmanship up to standard, ’ ’ and if you believe from the evidence in this case that there is controlling this class of business a generally accepted standard and mode of ascertaining by that standard the workmanship and quality of the material to be used in these knuckles, or a standard fixed by the agreement and proved, and that the knuckles furnished were up to the standard in workmanship and quality, then the plaintiffs would he entitled to recover. But if you should be unable to ascertain any specific standard or any specific tests from the evidence sufficient to satisfy yourselves, then there is a general rule or principle of law governing all contracts such as this which should govern you, and that is, that where one person sells an article to another for a particular use, there is an implied agreement that the article so sold shall be fit for that purpose. So that even if there should be no standard ascertained by which the quality and workmanship may be tested in this *345case, if the plaintiffs have furnished knuckles to the defendants for a particular use and those knuckles were reasonably suitable and fit for the purpose for which they were sold, in that case also the plaintiffs would be entitled to recover. But if they were not up to the standard, if any standard has been proved, or if they were not reasonably fit for the uses for which they were sold, the plaintiffs would not be entitled to recover, unless the defendants received the knuckles, made some use of them and thereby became liable; because if one receives goods and retains them, without objection, and uses them, he waives objection as to quality and the law holds him bound to pay for them. But if after having delivered the goods, the plaintiffs had notice that they were not fit for the purpose for which they were furnished and they .were tendered back to them or sent back to them and they refused to receive them, or were notified that they were held subject to their order, then the defendants would not be liable on account simply of having kept the goods.
The defendants claim in this case that they are not liable, on two grounds:
First, they claim that the goods were not up to standard, and were worthless for the purpose for which they were purchased. If they were not up to the standard, or not fit for the purposes for which they were sold as shown by proper tests, then the plaintiffs could not recover.
Second, the defendants claim, that they should not be compelled to pay for these goods, because of damage from plaintiffs’ failure to comply with their contract which they set up under a claim of recoupment. Recoupment is recognized in this State in the case of Draper vs. Randolph, 4 Harr., 456, in this language : “That if the plaintiff had proved a special contract as laid, and a part execution of it, not strictly within its terms, as by the delivery of ore of inferior quality ; if such ore had been accepted by the defendants, the plaintiff would be entitled to recover for such part performance, subject to a deduction of the damages which defendants sustained by the non-performance of the contract strictly and entirely. This is what we understand by recouping damages in an action of assumpsit.”
*346Recoupment is favored in law to prevent circuity of action and multiplicity of. suits, and is where one party to a contract is permitted to set up as a defense any damage he may have received by reason of the failure of the other party to comply with his contract in all matters involved in the contract.
So that if you believe that these knuckles were furnished and yet that they were not of .the quality and workmanship agreed upon and that by reason thereof the defendants suffered damages and that such damages amounted to as much as the claim, in this case the plaintiffs would not be entitled to recover on that ground. They could recover only so much of their claim as is in excess of such damages. If the defendants have succeeded in showing either of thesé defenses to your satisfaction from the evidence, they are entitled to a verdict.
This case is essentially a question of fact for you to decide. The law governing the case is plain and well settled, and there has been practically no dispute between the counsel as to the law. You are to determine from the evidence and £rom the facts proved whether your verdict shall be for the plaintiffs or, for the defendants.
Verdict for the plaintiffs for ¡$409.48