
    Geo. Easterly & Son v. Preston Jones.
    (No. 1597, Op. Book No. 3, p. 775.)
    Appeal from Grayson County.
   Opinion by

White, P. J.

§ 189. Warranty; remedies in case of. Where there is a breach of the agreement or warranty accompanied with fraud, the buyer may always return the goods or not, at his pleasure. Where there is no fraud, and the warranty goes to the fitness of the article, and it proves wholly unsuitable, or to the identity of the article, and it proves another thing from that for which it -vyas sold, it may be returned upon breach of the agreement or warranty. But if the warranty goes to the degree of fitness or to quality, and it proves to be an inferior quality or fitness, the goods cannot be returned, and the remedy is by action for damages, the measure of which is the difference between the value of the article as it is and as it was represented to be. Thus, if a machine is sold for a particular purpose, and it will perform none of the functions, it may be returned. [Sedgw. on Dam. 286; Story on Con. § 850; Chitty on Con. 399; Benj. on Sales, 741; Smith’s Lead. Cases, vol. 2, 276; Wright v. Davenport, 44 Tex. 164.]

Reversed and remanded.  