Gillespie a. Torrance.

court. In La Farge a. Halsey (1 Bosworth's R., 171; S. C., 4 Abbotts' Pr. R., 397), this court, in general term, held, that in an action against sureties for the payment, by the tenant, of the rent reserved in a lease, the sureties could not set up, as a counter-claim, damages sustained by the tenant, by reason of a breach by the landlord of an agreement made by him with such tenant-although the tenant, if sued for the rent, might have made such counter-claim.

In the present case, if a warranty of the quality of the timber was given to Van Pelt, and it was broken, there is in him a cause of action against the plaintiff: but even Van Pelt, if he used that claim as a defence to the note, would use it upon the principles governing the doctrine of recoupment; he would not be bound to set it up as a defence to the note-he might bring his own separate action for his damages.

If Van Pelt either brought his action, and now, under the Code, if he set up the claim as a counter-claim to the note, he might recover the whole damages sustained by him.

The defendant here has no control of that cause of action. Van Pelt may enforce it, or may assign it, or may release it. He may not choose to permit the defendant to have the benefit of it. The defendant could not, under any view of the subject, make it available to effect more than an extinguishment of the plaintiff's claim. He is not at liberty to so limit the rights of the vendee, and possibly preclude his obtaining full compensation for his damages; for obviously the plaintiff cannot be required to litigate the matter twice. The establishment of this cause of action by the present defendant, and its allowance in his favor, would not preclude an action by Van Pelt for his damages; and nothing done or proved in this action by this defendant could be permitted to defeat his recovery.

These considerations all show that an indorser, in virtue of his relation to the parties as surety for the maker, cannot protect himself by any such counter-claim.

And the definition of a counter-claim in the Code is further conclusive on the same point:-A counter-claim is another cause of action existing in favor of the defendant, as well as against the plaintiff (§ 150). This is not such a claim.

Whether circumstances might not be suggested which would create such equitable rights in the indorser, in case of the insol

Gillespie a. Torrance.

vency of the maker, as would entitle him to protection, we do not now inquire-none such appear in this case.

The defendant's answer places his defence upon the ground of a sale and delivery to Van Pelt-his own indorsement, without consideration, received by himself, and as surety for Van Pelt. The defendant is not in a condition to set up a distinct cause of action-a breach of warranty on such a sale, whether the warranty be expressed in words, or otherwise inferrible from all the circumstances-as a counter-claim, nor as a defence to the action.

It was ingeniously urged on the argument, that insomuch as, by reason of the inferiority of some of the timber sold, such portion thereof was reduced to what is called second-quality oak, or refuse oak, the defendant was at liberty to treat the case as a deficiency in quantity. And so he insists that there was a partial failure of the consideration of the sale, resulting in an over-payment by the vendee, Van Pelt, which leaves the note now in suit without any subsisting consideration; which view of the subject, if correct, would show, not a set-off or counterclaim, but a defence to the note itself, which will avail as well for the benefit of an accommodation indorser as for the benefit of the maker.

The plausibility which gives color to the argument arises from the casual coincidence that there were two qualities of oak sold, and not from any soundness in the view suggested. Had the sale described the oak as being a given number of sticks or feet of "first-quality oak timber," and the whole was delivered and accepted, and it was shown that a part of the timber was of an inferior quality, and yet the whole was retained and used by the purchaser, the defect could never be called a deficiency in quantity.

Neither can the defect be so considered with any more accuracy when, besides such a sale, there was at the same time, and as part of the same transaction, a sale of other oak in terms described as second quality, or refuse. The vendee has received the timber he bargained for-the very sticks which were contained in the raft. They may not be so good as was represented, but they are the sticks of timber which, in fact, he purchased. Where the property is received and retained, a defect in quality cannot be regarded as a failure of consideration. The

Gillespie a. Torrance.

maxim caveat emptor applies to the quality of the goods sold, unless there is fraud or warranty; and if there be a warranty, and it be broken, the breach creates a right of action in the vendee, not a defence (strictly so called) to the note given for the purchase-money. Indeed, the goods and the warranty, taken together, constitute a full consideration for the note, although the quality be of less value than it is warranted to be.

As, for example, on a sale of a horse which is warranted sound, and which is shown to have some defect, not obvious to mere inspection-the consideration of a note given for the purchase-money has not failed: the warranty itself (in so far as the defect impaired the value of the horse) makes up the consideration of the note, and, except upon the principle of recoupment or counter-claim, the vendee is without defence to the

note.

It may be, on a sale, such as it is claimed was made in the present case where the property was out of the State, in a condition not readily accessible, and where the sale was made in reliance upon the accuracy of the certificates of inspectionthat the purchaser would have had a right to refuse to accept the timber if, when delivery was offered, it was found not to correspond with the certificates; but he cannot accept the delivery, retain and use the timber, and, if there be no warranty, refuse to pay the consideration. If there be a warranty, then the breach of it vests in the vendee himself a right of action, which he may use as a counter-claim if he elect so to do, but which is not vested in the surety, and, as already stated, cannot be used by him.

2. The answer to the first question above proposed is sufficient to dispose of the case upon this appeal. The proof offered and rejected was not admissible, because, if a warranty had been proved, it would not have established, nor tended to establish, any defence, nor any counter-claim, in the defendant's favor.

It is, therefore, wholly unnecessary to consider the other question. No determination of that inquiry could affect the result. Whether the evidence was, in its nature, competent proof of a warranty, or whether, if competent, it would have tended to establish a warranty, the proof could be of no service

Gillespie a. Torrance.

to the defendant. The warranty would avail him in no manner for his protection.

It would seem, by the case, that the reason assigned at the time for rejecting a portion of the evidence was, that there was not sufficient evidence of a warranty. The grounds upon which the offers to prove a warranty were rejected are not stated. But these considerations are wholly immaterial. On exception to a ruling, the ruling must be sustained, if in point of law it was right, whether the appellate tribunal concur in the reasons given therefor or not. Where the true ground of the inadmissibility of material evidence offered is an objection which, had it been suggested, might have been obviated, and its rejection is placed so distinctly upon another and erroneous ground as to mislead the party offering the proof, that consideration might affect the propriety of granting a new trial, on a motion addressed, as such motions are in some degree, to the discretion of the court.

But this case is before us on appeal from the judgment, and on the exceptions only. If otherwise, no such case is presented as above supposed. The objection to the evidence could not be obviated; and had everything been proved which the defendant offered to prove, the plaintiff would still, as matter of law, have been entitled to a verdict for the amount of the note, and interest.

By this we do not design to intimate an opinion that the ruling was erroneous upon the grounds then stated; it is sufficient to say, that we find an established principle which disposes of the case without further discussion.

The judgment must be affirmed.

Waring a Waring.

WARING a. WARING.

Supreme Court, Second District; Special Term, April, 1858.

PARTITION. AMENDMENT.-NOTICE OF PENDENCY OF ACTION.

Of the proper time of filing a notice of pendency of action for partition, and of the effect of irregularities in the filing.*

* BENSON α. SAYRE.-Supreme Court, First District; Special Term, July, 1858This case came up on a motion by the plaintiff in a foreclosure action to require the purchaser at the sale to take title; and a motion by the purchaser to be dis charged from the purchase on the ground of irregularity in the proceedings, and to have his payment returned. It appeared that after service of summons the plaintiff filed a notice of lis pendens, and on the next day filed his complaint. After the filing of the complaint the premises were incumbered by other mortgages. The purchaser objected to the title, on the ground that the notice of lis pendens and complaint were not filed at the same time.

INGRAHAM, J.-Conceding that until the filing of the complaint the notice of lis pendens was of no validity, it appears to me the filing of the complaint gave it validity. It was then on file, and the filing of the complaint placed both papers on file the same day. The notice of lis pendens gave notice to the parties taking subsequent conveyances or incumbrances. Before the subsequent incumbrance in this case was received, both papers were on file, and the object of the statute in requiring them to be filed together was answered. The party having notice of the lis pendens could refer to the complaint on file for all the information to be obtained therefrom. The commencement of the action by the service of the summons is necessary to give validity to the notice, for the very good reason stated by Mr. Justice Rockwell, in Burroughs a. Reiger (12 How. Pr. R., 171)—viz., that notice of the pending of a suit before the suit is commenced is a nullity. In the same case he also holds the meaning of the statute to be, that the filing of the notice of lis penders shall not affect purchasers until the complaint is filed.

If the incumbrance had gone on record before the filing of the complaint, a different question would be presented, which it is not now necessary to decide, as it is conceded that the property in this case was not affected in the title by any act until after the notice and complaint were both filed. Any other construction of the statute would render it impossible for a party to comply with it so as to file the notice and complaint at the same time, where the property was located in different parts of the State.

If there was any necessity for it, the court might allow an amendment of the filing, so as to order the complaint refiled, nunc pro tunc, as of the date of filing