
    Seiberling et al. v. Mortinson.
    Where, in an action on a note, the answer alleged that the sole consideration was, a machine which plaintiffs agreed to repair, and that, by reason of their failure to make such repairs, the machine was worthless, an affirmative judgment for defendant, over and above the price of the machine, was erroneous, there being no averment of loss sustained in attempt to use it.
    (Opinion filed April 6, 1897.)
    Appeal from circuit court, Brookings county. Hon. J. O. Andrews, Judge.
    Action upon promissory notes. From an affirmative judgment in favor of defendant, plaintiffs appeal.
    Reversed.
    The facts are stated in the opinion.
    
      Frank D. Gay (Matheios & Murphy, of counsel), for appellant.
    
      •Alexander & Hooker, for respondent.
   Fuller, J.

Defendant, after admitting the execution, delivery, and nonpayment of two promissory notes, made the basis of this suit and aggregating $40, exclusive of interest, alleges, in substance, that a second hand Empire reaping machine was the only consideration therefor, and that, by reason of plaintiff’s failure to comply with their agreement to repair and put said machine in good working order, the consideration has wholly failed, as the machine without such repairs is, and at the time of purchase was, of no value whatever. Although no claim is made that defendant sustained special damages, and a breach of warranty is the only defense available and susceptible of proof under the answer, when most liberally construed, the jury found for defendant affirmatively, and returned a verdict in his favor for $57.04 damages, and the court entered judgment thereon for $88.29, including costs, and from said judgment plaintiffs prosecute this appeal. In the absence of an averment under which respondent would be permitted to prove that expenses were incurred or loss sustained by an effort, in good faith, to use the machine for the purpose intended the judgment appealed from is not sustainable. Conceding, in the absence of additional detriment, that the property would have been worth just $40, the purchase price, had the repairs been made as agreed upon, and that, without being repaired and put in order, the machine was, at all times to which the alleged warranty relates, absolutely worthless, respondent could recover no more than a judgment of dismissal and for costs and disbursements. Comp. Laws, §§ 4593, 4594. The judgment is reversed and a new trial ordered.  