
    [No. 6157.
    Decided August 17, 1906.]
    Archibald R. Galbraith, Plaintiff and Appellant, v. T. H. Carmode et al., Defendants and Appellants.
      
    
    Sale — Breach oe Warranty — Pleading—Damages—Election— Harmless Error. In an action to recover damages for false representations concerning the pedigree of a horse made on a sale of the horse, and also asking statutory damages in double the price paid, allowed in such case by Bal. Code, § 7176, the plaintiff should be required to elect whether he will seek to recover actual or the statutory damages; but failure to do so is not prejudicial to the defendant where only statutory damages were awarded.
    Appeal — Review—Findings. Findings of the trial court in an action at law tried without a jury will not be disturbed on appeal where the evidence is conflicting and unsatisfactory.
    Sale — Breach oe Warranty — Damages. In an action for false representations respecting the pedigree of a horse sold, the plaintiff is not entitled to recover both actual damages and statutory damages in double the price paid, under Bal. Code, § 7176.
    Appeal — Review—Harmless Error — Damages—Breach oe Warranty. When the actual damages shown by reason of false representations concerning the pedigree of a horse do not exceed the amount of statutory damages allowed in double the purchase price in such case, under Bal. Code, § 7176, the plaintiff is not injured by the allowance of statutory damages since both actual and statutory damages are not recoverable.
    Cross-appeals from a judgment of the superior court for Spokane county, Kennan> J., entered September 13, 1905, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action for damages for falsa representations in the sale of a horsa
    Affirmed.
    
      Hamblen, Lund & Gilbert, for plaintiff.
    
      Peacock, Wells & Ludden, for defendants.
    
      
      Reported in 86 Pac. 624.
    
   Root, J.

Plaintiff brought this action against the defendants to recover on account of a breach' of warranty and alleged false representations in the sale to him by defendants of a certain stallion named “Leo, Jr.” Defendants sold to plaintiff two stallions, for the sum of $1,000, and in making the sale represented that Leo, Jr., was a full-blooded French draft horse, duly registered. Thereafter plaintiff sold both of said stallions to third parties. The purchaser of Leo, Jr., discovered that said stallion was. not as represented, and required plaintiff to take him back and return the purchase money. In this action plaintiff claimed damages, (1) for money expended in keeping the horse and in selling him td a third person; and (2) for damages to his business and reputation as a horse dealer. He also asked for damages in double the purchase price, under the provisions of Bal. Code, § 7176 (P. O. § 1943). The defendants, in'their answer, denied that plaintiff had suffered any actual damages, and alleged that the fact that the stallion was not a full-blooded French draft horse, duly registered, was fully known to plaintiff at the time of the purchase and prior thereto.

The case was tried before the court without a jury. Prior to the introduction of any evidence, defendants requested the court to require the plaintiff to elect whether he would seek actual damages or the statutory damages provided for by said § 7176. The trial court reserved its ruling, and permitted evidence to be introduced bearing upon the question of actual damages and upon the purchase price paid for the stallion. Findings of fact were made to the effect that the statements in regard to the registry of the horse, and as to its being a full-blooded French draft horse, were false, and that plaintiff had relied upon said representations in making the purchase; that the purchase price p|aid by plaintiff for said horse was $250; that plaintiff had not expended for the care and keeping of said animal, or the making of the sale thereof, any sum whatever, and had not been injured in his business or reputation in any sum; that plaintiff in payment for the two horses executed and delivered his two piromissory notes, each in the sum of $500, which were, at the time of the trial, in the possession of the defendants. Upon the findings and conclusions, the court entered a decree, awarding plaintiff damages in the sum of $500, said amount being twice the amount of the purchase price which the court found had been paid by plaintiff for said stallion, and further ordered that defendants he permanently enjoined from transferring or attempting to ■ transfer, or in any manner disposing of, the promisory notes, and that said notes he delivered up and cancelled. Prom this judgment and decree both parties have appealed.

Defendants urge that their request for a rule on the part of the court requiring the plaintiff to elect as to what character. of damages he would insist upon should have been granted. We think the trial court should have required the plaintiff to make this election. It could hardly he maintained that plaintiff was entitled to recover both actual and statutory damages. Hence, he should have indicated at the commencement of the trial which he would ask, in order that the defendants might know what they had to meet, and that the court and both parties might have their attention confined to the issues necessarily involved. However, in view of the final outcome of thie case, we do not think this error on the part of the trial court was prejudicial to defendants^ and is not in our' opinion sufficient to justify a reversal of the trial court’s judgment and decree.

It is further urged by defendants that the pleadings and evidence in the case fail to show that $250 was the purchase price paid for Leo>, Jr., and that consequently there is no basis for the allowance; of $500 as statutory damages. Plaintiff testified that he paid $500 cash for the two stallions. Defendant T. H. Oarmode testified that he sold Leo, Jr., for $200, and the other stallion for $800. In the second amended complaint it is alleged that they sold Leo, Jr., “for the agreed sum of not to exceed $250.” While the evidence is conflicting and not entirely satisfactory, yet we think there was sufficient competent evidence to sustain the finding of the court as to the amount paid for the horse.

Plaintiff complains that the amount of damages allowed is inadequate- He urges that the evidence' shows that $500 was the purchase price of the stallion, and that consequently $1,000 should have been allowed as statutory damages, and •that he should also' have been allowed tbe other damages asked for in bis complaint. It appeared in tbe evidence that plaintiff sold the other* horse for $2,250. The evidence as to expenses and as to damage to thei business and reputation of plaintiff as a horse dealer was of a character which, under all the circumstances, would not show the findings of the trial court to he erroneous. The court could not allow both actual and statutory damages. As to’ whether it could have allowed any other than statutory, we are not now required to decider We do not think the evidence shows any actual damages to the plaintiffs in excess of $500. Consequently, in allowing statutory instead of actual damages, the.court did no' injury to the plaintiff. What has been hereinbefore said as to defendants’ claim touching the amount of the purchase price, may he repeated as to plaintiff’s contention regarding that question. Upon the whole case, we think the judgment and decree of the trial court was substantially correct, and it is therefore affirmed.

Mount, C. J., Crow, Dunbar, and Fullerton, JJ., concur.  