
    No. 9990.
    Schneider v. Green.
    Decided April 4, 1921.
    Action to recover purchase price paid for a tractor on the ground of failure of warranty. Judgment for plaintiff.
    
      Affirmed.
    
    
      On Application for Supersedeas.
    
    1. Instructions — Measure of Damages. On a review of the instructions, held, that the issues were fairly submitted to the jury.
    Messrs. Munson & Munson, for plaintiff in error.
    Mr. S. E. Naugle, Mr. M. C. Leh, for defendant in error.
   Mr. Justice Whitford

delivered the opinion of the court.

The plaintiff in error, defendant below, sold the defendant in error, plaintiff below, a tractor engine for $1,000.00. The complaint alleged that the defendant made certain warranties as to the quality and condition of the tractor engine, and promised that if the purchaser should find the engine in a condition otherwise than as represented by him, the purchaser might return the tractor and that the purchase price thereof would be refunded. It is further alleged that the engine was not in good working order or in first class condition as represented, and that the plaintiff returned the engine to the defendant and demanded the return of the purchase price, which was refused. The answer admits the sale for $1,000.00 and the offer to return the engine and to refund the purchase price.

There was a verdict and judgment for $1150.00. The plaintiff, on motion for new trial, remitted $32.23, the amount of the verdict in excess of the purchase price and interest. Defendant below brings error and prays for supersedeas.

The plaintiff in error waives all assignments of error except as to the instructions given and refused with respect to the measure of damages.

We have examined all of the instructions in the case, and we are of the opinion that the issues were fairly submitted ,to the jury. The jury were charged, in substance, that if they should find from a fair preponderance of the evidence that the defendant did warrant the engine and agreed to take it back and refund the purchase price upon a failure of the warranty, then their verdict should be for the plaintiff in the sum of $1,000.00 and interest; and, on the other hand, that if they should find no such warranty and promise were made by the defendant, then their verdict should be for the defendant.

We find no error. Supersedeas denied. Judgment affirmed.

Mr. Justice Teller and Mr. Justice Denison concur.  