
    The Boviard & Seyfang Manufacturing Co. v. Maitland.
    
      Sales — Breach of warranty — Admission of evidence and charge to jury — Special damages — Defective condition — Remedies of buyer — Section 8449, General Code — Pleading and proof —Warranties—Prior transactions — Limitation of jury charge — Issues supported by evidence.
    
    (No. 14453
    Decided May 18, 1915.)
    Error to the Court of Appeals of Wayne county.
    The plaintiff in error brought an action against the defendant in error, B. K. Maitland, to recover a balance due on an account for goods and merchandise sold and delivered. The defendant filed an answer and cross-petition, denying that he was indebted on this account and averring that he had through mistake largely overpaid the same, and asked judgment for the amount of this excess payment.
    He further averred that the plaintiff had warranted the quality of certain articles included in the account, to-wit, a boiler, steam engine and two wire cables, purchased at certain specified dates.
    The plaintiff for reply denied the averments of' the answer and cross-petition.
    Upon the trial of the case, it appearing from the evidence of both plaintiff and defendant that they had adjusted the dispute with reference to the steam engine by the return of the first one furnished by plaintiff to defendant and the installation of another one in its place, the court took this cause of action from the jury.
    .The defendant averred that plaintiff had warranted the wire cables to be “new, free from defects, sound and serviceable, and would do the work necessary, and in every way answer the purpose for which they were intended to be used by the defendant, to-wit, the drilling of deep oil and gas wells.”
    In support of this allegation of express warranty, the defendant testified that the seller said to him at the time of the purchase, “If they do not do the work we will make them good with the money or another cable.”
    The defendant also averred in his cross-petition that one of these cables was purchased on the 4th day of August, 1911, and the other one on the 29th day of November, 1911. These dates correspond with these items in the plaintiff’s account. The account further showed that other wire cables were purchased earlier in that year. The evidence of the defendant was directed to the defective condition of a wire cable used in the Roclcey well. This well was drilled in July, 1911, and on the 16th day of July of that year the defendant wrote the plaintiff, advising him that the second wire line that plaintiff had shipped to him at Wooster, Ohio, had broken about eight hundred feet from the bottom.
    There is no conflict in the evidence as to when wire cables were shipped by plaintiff to defendant. The first one was shipped on the 3d day of May, 1911, and the second one on the 1st day of July of that year. There is no averment in the cross-petition as to any express warranty of either of these two cables, or that they were defective in any respect. The allegations of the cross-petition are directed to the cables furnished in August and November. No amendment to this cross-petition was filed and no evidence tendered by the defendant, with reference to these two cables, tending to prove special circumstances showing proximate damages of a greater amount than the difference between the value of these two cables at the time of delivery to the buyer and the value they would have had if they had answered to the warranty. On the contrary, the evidence of this character was all directed to the second line, bought July 1 of that year, which broke in the Rockey well; all of which is conclusively shown by the letter of the defendant, dated July 16, 1911, advising the plaintiff of the breaking of this line, long before the cables complained of in the cross-petition were purchased by the defendant. The trial court excluded this evidence and refused to charge the jury in reference to the special damages claimed by the defendant.
    The jury by special verdict found that there was due to the plaintiff the amount claimed by it upon the account attached to the petition. The jury also found that the boiler was not defective and was worth, at the time of delivery to the plaintiff, the amount he agreed to pay therefor. The jury further found that the wire cables which'had been sold to the defendant for $468.80, were worth, at the time of delivery, $325.
    Judgment was entered for plaintiff upon this verdict for the balance in its favor. The court of appeals reversed this judgment for error in the exclusion of evidence as to special damages and for refusal of the trial court to charge in reference thereto.
    
      Mr. Frank Taggart, for plaintiff in error.
    
      Messrs. McClaran & Jones, for defendant in error.
   By the Court.

The jury having specifically found that the boiler described in the defendant’s first cause of action was not defective, any error of the court in refusing to admit evidence as to special damages or in its failure to charge upon that subject, is not material, for the boiler not being defective, the defendant would not be entitled to any damages, special or otherwise.

The plaintiff and defendant having adjusted the dispute touching the defective condition of the steam engine, under the provisions, of paragraph 2 of Section 8449, General Code, the defendant could have no other remedy, and the court properly took this issue from the jury.

An averment in a petition or cross-petition for damages for breach of warranty that the seller warranted wire cables to be “new, free from defects, sound and serviceable, and would do the work necessary, and in every way answer the purpose for which they were intended to be used by the defendant, to-wit, the drilling of deep oil and gas wells,” is not sustained by evidence that the seller said, at the time of the purchase, “If they do not do the work we will make them good with the money or another cable.”

Where, in an action for damages for breach of warranty, the cross-petition avers that certain specific articles, purchased on certain definite dates, were warranted by the seller, evidence offered by the purchaser, tending to prove damages sustained by him by reason of defects in similar articles purchased by him from the same person, partnership or corporation, prior to the time the articles averred in the cross-petition to have been warranted by the seller were purchased, is inadmissible to prove damages sustained by the purchaser by reason of breach of contract of warranty of the specific articles described in the petition.

The trial court is not required to charge the jury upon an issue joined in the pleadings, where no evidence directed to such issue has been offered on the trial of the case. The charge should be directed to the facts in issue, which the evidence tends to establish1 or disprove. (Lewistown Foundry & Machine Co. v. The Hartford Stone Co., ante, 76, approved and followed.)

Judgment of the court of appeals reversed, and that of the common pleas affirmed.

Nichols, C. J., Donahue, Newman, Jones and Matthias, JJ., concur..  