
    King v. Manning.
    [90 South. 728,
    No. 22430.]
    Sauss. The measure of damages for breach of warranty is the difference between the value of the mule bought in its unsound condition and price paid; evidence must show value with reasonable certainty.
    
    In an action for damages for a breach of warranty of soundness of a mule sold plaintiff, the measure of damages where the plaintiff retains the mule is the difference between the value of the mule in its condition of unsoundness and the price paid for the mule; and the plaintiff must prove the value of the mule in its unsound condition ' as well as the sum paid for it. Evidence of the lameness of the mule and its unfitness for the service for which it was bought is not sufficient to support a verdict of one hundred dollars, where the purchase price was two hundred and seventy-five do’lars. The evidence must show the value with reasonable certainty.
    Appeal from circuit court of Union county.
    Hon. W. A. Roane, Judge.
    Suit by J. W. Manning against H. D. King. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    
      G. L. Jones, for appellant.
    The judgments should have been set aside and a new trial granted because there is no evidence to support the verdict of the jury. Before a verdict for damages should be allowed to stand, damages should have been proven ánd the proof should establish the damages with reasonable certainty. There is an entire absence of evidence to support the verdict of the jury in this case, and.a reversal of the case must necessarily follow. Payne, Director General) V. Wayne, 88 So. 705] Stone v. Pounds et al., 88 So. 629;^ Otey v. MoAffee, 38 Miss. 348.
    There is no evidence to support the verdict of the jury and the court should have set aside the verdict. Goleen v. State, 67 Miss. 330.
    
      
      B. N. Know, for appellant.
    If appellant made certain representations and warranties, upon Avhich appellee relied, and said warranties were false, it served to breach the contract of sale between the parties. This question was passed upon by the jury and •decided in favor of appellee. If the warranties were false then appellee had a right to demand the return of the full purchase price.
    While appellee did not testify that his damages was so many dollars and cents, as one hundred and fifty-five dollars and fifteen cents, or some other equally definite amount, yet the testimony Avas definite enough for the jury to render a judgment, based on the evidence. The proof showed the condition of the mule. Appellant valued him at twenty-five dollars; other Avitnesses testified that he was unfit for the Avork he Avas bought for; when this is done, then it is the province of the jury to fix such damages at such sum as the jury may believe from the evidence in the case, plaintiff is entitled to. The quantum of damages is left to the jury, restricted only in that they cannot bring in a larger amount than sued for.
    On the next to last page of appellant’s brief, end of first paragraph as folloAvs: “And the court further instructs you that in order to find for plaintiff you do not have to believe that said warranties were false, counsel has misquoted the instruction by omitting the very important Avord ‘Intentionally’ preceeding the word ‘false? Record, page 63. All the instructions given for plaintiff, taken together, clearly announce the law as to this case, and the jury was not misled.”
   Ethridge, J.,

delivered the opinion of the court.

Manning brought suit against King for two hundred and seventy-five dollars for breach of warranty of a mule bought by Manning from King. Manning bought a pair of mules for five hundred and seventy-five dollars under a, warranty of soundness. One of the mules had a scar on the left fore foot from some injury which had resulted in a hardening of the cartilage of the ankle into a bony substance, which caused the mule to become lame when worked steadily at heavy work. The pair of mules was bought for lumber hauling and other heavy work. The testimony shoived that the mule could not do steady work of a heavy nature, and would go lame after about two or three days work and went lame from plowing and other work of that kind. When the lameness was discovered, or shortly thereafter, the defendant King’s attention was called to it, and he requested Manning to keep the mule and that he would do whatever was right about it. There is a dispute in the evidence as to the soundness of the mule and whether he Avas lame, and also as to the period of time which King requested Manning to keep the mule. In the fall of the year the mule was tendered back to King, who refused to receive it. There Avas a suit brought on the warranty. No judgment was entered on the minutes at the term in Avhich the case was tried, but at a subsequent term a nunc pro tunc order was made reciting a jury verdict for one hundred dollars for the plaintiff, and that such judgment was not entered of record because of clerical error. A motion was also made by the appellant, King, to tax Manning with the cost of the suit because the verdict and judgment was for less than two hundred dollars, and the trial judge did not certify under the statute that the plaintiff had reason to believe he would recover a greater sum than two hundred dollars. It was also insisted in a motion for a new trial and here that the evidence was insufficient to support the verdict.

There Avas no proof in the record as to the real value of the mule in its lame and crippled condition. The only proof is the nature and extent of the injury coupled with the statement that the defendant had offered twenty-five dollars in satisfaction on his warranty, which was refused. The trial proceeded upon the theory of a suit in damages for breach of warranty, and the rule is in such cases that tbe plaintiff! is entitled to tbe difference in the value of tbe mule in its then condition and tbe purchase price paid for tbe mule. Hambrick v. Wilkins, 65 Miss. 18, 3 So. 67, 7 Am. St. Rep. 631. See also Westmoreland v. Walker & Atkinson, 25 Miss. 76; Stillwell, Bierce & Smith Vaile Co. v. Biloxi Canning Co., 78 Miss. 779, 29 So. 513.

For tbe error indicated, tbe judgment will be reversed, and remanded for a new trial. In this attitude of the record it is unnecessary to notice the other qustions raised, as they may not appear in a subsequent trial.

Reversed and remanded.  