Lane v. Lantz

Babtol, J., delivered the opinion of this Court. The appellee purchased from the appellant’s intestate a mare warranted to be sound, and paid the price agreed on ; at the time of the sale the mare was unsound, being affected with lung fever, of which disease she died six or seven days thereafter. This suit was brought for a breach of the warranty. At the trial, the Circuit Court instructed ■the jury, that if they found the sale and the warranty, and that at the time of the purchase the mare was unsound, and died in the appellee’s hands, in consequence of such unsoundness, and that the price was paid, then the appellee was entitled to recover, “and the measure of damages was the value of the mare at the time of the sale.” The appellant contends that this instruction was erroneous as to the measure of damages. In Mayne on Damages, 88, (95 L. L.,) the law in cases like this is thus stated: “Where the article has not been returned, the measure of damage will be the difference between its value, with the defect warranted against, and the value which it would have borne without that defect.” The author says, “the weight of authority in England is strongly in favor of the rule as stated above, and the doctrine in America is the same.” This is no doubt the correct rule. See Sedgwick on the Measure of Damages, 287 to 291, (marginal paging,) where this subject is considered and the cases collected. See [217] also Clare vs. Maynard, 7 Car. & P., 741 ; Bridge vs. Waine, 1 Stark. Rep., 504 ; Caswell vs. Coare, 1 Taunt., 566 ; Carey vs. Gruman, 4 Hill, 625. The rule is also established by these cases that the price paid is strong prima facie evidence of the value of the article, if it had been sound, or corresponded with the warranty. In this case there was no other evidence offered, either by the plaintiff or defendant, of what would have been the actual value of the mare at the time of the sale, if she had been sound. So far as that item was concerned, therefore, the price paid might properly be considered as fixing such value, and, in the absence of other proof, there would be no error in so instructing the jury. But the appellant contends that the jury ought to have been instructed to deduct from this sum the actual value of the mare, at the time she was sold, in her unsound condition. There was no direct proof offered to show what her actual value was at the time of the sale ; the proof was that she was then affected with a disease, of which she died in a few days afterwards. From this evidence the jury might well have found that she was valueless when sold, and therefore the measure of damage to be recovered by the plaintiff would be the price paid without any abatement or deduction. The Court below, in the instruction granted, did not distinctly submit it to the jury to find that the mare thus fatally diseased was of no value ; but in the instruction assumed the fact to be so, and thus took it away from the jury. This, the appellant says, was error, for which the judgment ought to be reversed. It is a little difficult to understand how the appellant was injured by the assumption that a horse so fatally diseased as to die in the purchaser’s hands in a few days, could be of no value whatever to the purchaser. The appellant’s complaint is literally that the appellee was not compelled to pay for a dead horse. [218] (Decided 14th June, 1867.) But looking at the objection to the instruction as it is presented, it is simply that the Court assumed a fact of which there was proof, instead of submitting it to the jury. This objection was not taken at the trial below, and since the Act of 1862, ch. 154, it cannot avail if made for the first time in the appellate Court. If the Circuit Court had instructed the jury upon the facts stated in the prayer, that the measure of damages in this case was the price paid, there would be no ground for reversal; and such we construe to be the real meaning of the prayer. The language employed was that the measure of damages was the value of the mare at the time of the sale, we understand that as intending the value with the warranty, that is, the price paid, or value at which she was estimated by the parties ; so it appears to have been understood by the jury. If it were susceptible of a different construction, so as to mean her actual value in her diseased condition, the plaintiff alone could be injured thereby, and the appellant could not justly complain. We affirm the ruling of the Court upon the appellee’s prayer. In our opinion, there was no error in refusing the appellant’s prayer. In order to maintain an action for a breach of warranty, in a case like this, it is not necessary for the vendee to return, or offer to return the property. Franklin & Armfield vs. Long, 7 G. & J., 407. Here the appellee did not elect to rescind the contract, and sue to recover back the purchase money; but the action is upon the warranty to recover damages for its breach. Judgment affirmed.