
    Hedeen v. Bausinger.
    (Decided March 31, 1927.)
    
      
      Mr. J. W. McCarron and Mr. Clarence U. Ahl, for plaintiff in error.
    
      Mr. Charles F. Schaber and Mr. A. S. Leuthold, for defendant in error.
   Justice, J.

This is a proceeding in error to reverse a judgment in the court below, in which Henry Bausinger was plaintiff and Ed. Hedeen was defendant.

The original action was one for the recovery of damages for an alleged breach of a contract of warranty in the sale of a second-hand truck. The truck was sold on or about October 3, 1924, at Bucyrus, Ohio.

Bausinger claims that at the time of the sale of the truck he told Hedeen that he intended to use the truck in hauling fruit and vegetables to market, and that Hedeen warranted it to be fit for that purpose; that he used the truck some thirty days, and then returned it to Hedeen; that the truck was not fit for the purposes for which it was sold and warranted; and that, by reason thereof, he has suffered damages, both general and special, in the sum of $669.35. Hedeen denies the warranty and that damages were sustained. The jury returned a verdict in favor of Bausinger for $300.

We have examined each and all of the errors assigned, and, without setting them out and commenting on them in detail, will say that we are unable to sustain the contention of the plaintiff in error with respect to any of them, save one — that is to say, error of the trial judge in admitting evidence of the value of the truck without regard to the time and place of sale.

The measure of damages in this case, so far as the general damages are concerned, is the difference, if any, between the actual market value of the truck at the time and place of sale and what would have been its fair market value at the time and place of sale, if it had been as warranted. See 24 Ruling Case Law, 253, 254, 255; 2 Jones Commentaries on Evidence (2d Ed.), Section 702.

Under the pleadings, one of the issuable facts which plaintiff below was required to establish by a preponderance of the evidence, under proper instructions of the court, was therefore the actual market value of the truck at the time and place of sale.

In order to establish this essential and necessary element of proof, plaintiff below called witnesses, who, over the objection of defendant below, were permitted, without regard to time and place of sale, to testify to the value of the truck.

In receiving this evidence and permitting it to go to the jury, the trial judge committed error, which, if prejudicial to defendant below, will compel a reversal of the judgment.

According to the undisputed evidence, the value of the truck at the time and place of sale, had it been as represented, and warranted, was $460. The plaintiff below failed to introduce any evidence tending to prove the actual market value of the truck at the time and place of sale, but the defendant below, in putting on his defense, called witnesses, who gave testimony tending to establish the actual market value of the. truck on October 3, 1924, at Bucyrus, Ohio. These witnesses placed the value at $450. There is evidence tending to establish that plaintiff below suffered special or consequential damages in a sum not exceeding $194.10. The verdict in this case is for $300, and judgment for that amount has been entered.

It is most apparent from these figures that the general damages sustained could not have exceeded $10, and that the damages, both general and special, could not have exceeded $204.10. As the verdict was for $300, the jury, in arriving at the verdict, must necessarily have considered the testimony of those witnesses who testified to the value of the truck without regard to the time and place of sale.

Obviously,, the reception by the trial judge of such evidence was not only erroneous, but prejudicial to the defendant below, and must compel the reversal of the judgment. It may be that the witnesses who gave such testimony intended the situs to be Bucyrus, Ohio, and the time as October 3,1924. Maybe they did; maybe they did not. Anyhow, they did not say so, and the trial judge was not warranted in permitting the jury to guess concerning same.

' For the reasons given, the judgment should be reversed.

Judgment reversed.

Crow and Hughes,, JJ., concur.  