Thompson v. Burgey

The opinion of the court was delivered by Read, J. In an action upon a warranty, the measure of damages is the difference between the actual value and the value .of the thing when sound, and that without regard to the price given originally or obtained upon resale. Such price may be used as evidence, whether paid in money or by exchange of other property. In an action on the case for deceit, this perhaps would be the lowest measure of damages; “ for where the wrong com [406] plained of is characterized by fraud, malice, or gross carelessness, I think the rule of damages should be extended, so as to embrace all damages which naturally flow therefrompe:" Hubbard, J., Sharon v. Masher, 17 Barb. 620. In the present case, the declaration was in assumpsit, the plea not guilty, and it was tried as an action on the case for deceit. The charge, therefore, of the judge, as. to the measure of damages, was as favourable to the defendants as they had any right to ask. This disposes of all the errors assigned; there being none assigned as to the rejection of the evidence contained in the last bill of exceptions. Judgment affirmed.