John M. Clark & Co. v. Neufville

McCay, Judge. These peas were sold with a warranty, delivered according to the agreement, accepted and paid for. There is no pretence of fraud; the defendants below supposed the peas were [265] as described. There has, without doubt, been a breach of the warranty, and the plaintiff was entitled to a verdict. The only question is, what is the proper and legal measure of damages? The Court charged the jury, in substance, that the price paid and expenses, less what the peas sold for, was the true criterion. In other words, the Judge told the jury that if there was a breach of warranty, the peas, when the fact was discovered and notice given, were at the defendant’s risk, and, as he did not take them away, they were properly sold on his account, and, being due to the plaintiff the price of the peas and the expenses of their transportation, he was entitled to a credit. Our Code, section 2610, says, “ a breach of warranty, express or implied, does not annul ihe sale, if executed, but gives the purchaser a right to damages.” If this be so, these peas were not at the risk of the defendant at any time after-they were delivered, accepted and paid for. It was not in. the power of the plaintiff to make them the defendant’s property again and sell them at his risk. The breach of the warranty did not annul the sale. The plaintiff had, on the breach, a right to an action for the damages done him at the sale. He had no right to cast upon the defendant the loss caused by the fall of peas in the market, and that was no element in the wrong done him by the defendant. And; under the evidence in this case, that, under the charge of the Court, was a material matter. The measure of damages on the breach of warranty in an executed contract, is the difference between the price paid and the real value of the article at the time and place of sale. This is the rule adopted by this Court: 1 Kelly, 591; 23 Ga., 17; 26 Ga., 70-1; 30 Ga., 948; and this is the common law. Lord Tenderden, in 2 B. and Ad., 461, says: “ Where the property in the specific chattel has passed to the vendee and the price has been paid, he has no right, on the breaeh of the warranty, to return the article sold, revest the property in the vendor and recover the price. He must sell on the warranty, unless there has been a condition in the contract [266] providing for a return:” Strut vs. Blay, 2d B. and Ad., 461. If there be fraud in the sale the rule is different. The sale is void, and the vendee has a right on discovery of the fraud to rescind: Sedgwick on Damages, 280. But an offer to rescind is not enough. The plaintiff must put, or offer to put, the vendee in the situation in which he found him. He must be able to rescind, that is, redeliver to the vendee: Code 2809, 20 Howard, 154. We will not say that the difference between the price paid, and the value of the unsound article at the time and place of sale, is the only damages that may be recovered. That is the measure of the direct damages. But if there be also indirect damages, growing directly out of the transaction, capable of computation with reasonable certainty, they may also be recovered: See Code 2893-3017, Sedgwick on Damages, 280. We think, therefore, the charge was wrong; the Judge’s charge is only correct in a case of rescission. This was not, and could not, under the evidence, be such a case. Judgment reversed.