This is an action of assumpsit for work and labor, in general indebitatus assumpsit.
■ The plaintiff’s testimony tended to show a contract to lay an aqueduct on defendant’s land, for one dollar a rod, thirty-three rods.
The defendant’s testimony tended to show that plaintiff warranted, at the time the contract was made, or agreed to warrant, the aqueduct to stand and to do good service a year, and that the work was done poorly, and not sufficiently covered to protect it from frost, and that in consequence thereof it failed, and was of no use to defendant the greater part of the first and second winters.
The plaintiff’s testimony showed, or tended to show, that no such warranty was made, and that the aqueduct failed from other causes.
Fault was found with the work as it progressed.
The court charged the jury, that if the warranty made at the time of the contract was, that the water should run, at all events, for one year, the plaintiff would, on failure or breach, be liable for damages ; but that it could not be made' available in this action, not being pleaded in offset. .
In this we think the court were in error. Such a warranty, although of a collateral matter in some respects, and not necessarily connected with the sufficiency of the erection made by plaintiff, would nevertheless form an essential ingredient in the price of the work, or in its value to defendant, and if it failed, would be to that extent a failure of the consideration of the defendant’s undertaking, and for this reason may .be taken, advantage of in an action for the price, the same as if the warranty had reference to the quality of plaintiff’s work, wliich seems not to have been excluded from the consideration of the jury, and the other view of the warranty should not have been.
It was upon this ground that all warranties of goods and labor were rested in suits for. such labor or goods, formerly, it being, *141considered that the warranty was a matter altogether colláteral. But upon examination, it was found that the warranty formed an essential portion of the consideration for defendant’s undertaking, and that it was showing that defendant had not received what he stipulated for, and thus converting the contract, for a fixed price, into a mere quantum meruit, or quantum valebat. And it makes no difference whether the warranty has reference to the quality of the work, or its use, or operation ; it equally affects its value to defendant, and its failure is proper to he shown in reduction of the stipulated price, in the one case, as well as the other.
Judgment reversed, and case remanded.