James E. Conor, Appellant, v. John Dempsey, Respondent

James E. Conor, Appellant, v. John Dempsey, Respondent. (Argued April 18, 1872; decided April 23, 1872.) Plaintiff agreed to manufacture and deliver to defendant two engravers’ stamping presses, and to warrant that they would do defendant’s work without breaking. The presses were manufactured and delivered under the contract, and were accepted and paid for by defendant. Subsequently they were broken while being used in defendant’s business. In an action to recover the purchase-price of other presses, defendant set up the breach of warranty as a counter-claim. Held, that the acceptance and retention of the presses by defendant did not bar him of the right to the counter-claim, and defendant was entitled to his damages, to wit, the difference in value between presses that would do defendant’s work and these broken ones. D. G. Gdl/oin for the appellant. Samuel A. Hoyes for the respondent. [MAJORITY — Gboveb, J.,] Gboveb, J., reads opinion for affirmance. Folgeb, Allen and Rapadlo, JJ., concur; Chuboh, Oh. J., and Peckham, J., dissent. (There was a question in the case as to the rejection of evidence. The court held the rejection error, bnt the majority held that the plaintiff could not have been injured thereby. The dissent was to this view.)