
    Maggie Lewis, Respondent, v. John Doyle and George T. Cook, Appellants.
    
      Bales — breach of warranty — remedy of the vendee — measure of damages where the vendor takes back the chattel warranted — knowledge of the falsity of the warranty.
    
    The ordinary rule, that where a breach of a covenant of warranty of chattels has occurred, the buyer’s remedy is, not to rescind the contract, but to recover ■from the vendor, upon the theory that the contract is still in force, damages measured by the difference between the value of the property as it would have . been as warranted, and its value as it actually was, is subject to an exception where it appears that the vendor, upon complaint made to him of defects, has taken back and retained the chattel warranted, in which event the vendee is entitled to recover of the vendor the price paid and interest thereon.
    In such an action it is not necessary to allege or prove that the vendor was aware of the falsity Of the warranty.
    Appeal by the defendants, John Doyle and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 18th day of April, 1896, upon the verdict of a jury rendered after a trial at a, Trial Term of the Supreme Court held in and for the county of New York, and also from an order entered in said clerk’s office on the 2d day of June, 1896, denying the defendants’ motion for a new trial made upon the minutes.
    
      Ambrose F. McCabe, for the appellants.
    
      Charles W. Coleman, for the respondent.
   Rumsey, J.:

The action was brought to recover damages for a breach of warranty upon the sale of a horse which the defendants made to the plaintiff. The plaintiff alleged in her complaint that, upon discovering that there had been a breach of the warranty, she returned the horse to the defendants, and that it was accepted and retained by them.

She alleged that she had sustained damages in the sum of $400, which sum she had demanded from the defendants, but that they had refused to pay it to her.

Upon the trial proof was given on the part of both plaintiff, and defendants as to the breach of- warranty.' Evidence was also given • by both parties upon the question whether or not Mr. Doyle, after he had been informed that there had been a breach of the warranty, agreed to take the horse back. These two questions were submitted to the jury, by the learned trial justice, and they were instructed that, if they found in favor of the plaintiff, the damages should be $400,-with interest from the time of the commencement of the action. - Ho exception was taken to this instruction of the court, nor was any request made to submit any other questions to the jury than were submitted. The jury found a verdict for the plaintiff for $400 and interest from the time of the commencement of the action. After a motion for a new trial had been denied, the defendants appealed from the judgment and from the order denying the motion.

At the close of the plaintiff’s case a motion was made to dismiss the complaint upon the ground that there was no evidence that the defendants knew, prior to the sale of the horse, that it had at any time previous to the sale either shied or balked, or reared up or plunged. This motion was denied and the defendants excepted. It is very clear that the court did not err in refusing to grant the motion. The action is for a breach of warranty, and upon such a cause of action it is not necessary to allege or prove that the defendant was aware of the falsity of the warranty. His liability does not accrue because of any false representation or deception on his part, but solely because he has made a contract which has been broken.

The defendants claim that the rule of damages adopted by the court was erroneous, and, to a certain extent, that claim is undoubtedly well founded. Where there is a. breach of a covenant of a warranty of chattels, the buyer has no right to rescind, but his remedy is to recover from the seller his damages, upon the theory that the contract is still outstanding; and those damages are the difference between the value of the property as it would have been had it come up to the warranty and its value as it was with the defects, which constituted a breach of the warranty. If this rule of damages had been applied in this action, it would undoubtedly have required a different verdict. But it was not the proper rule to apply in this action, because the plaintiff proved and the jury found that,, after the breach of the warranty, the plaintiff had given back the horse to the defendants, who had accepted and retained it. That being the case, a verdict for the plaintiff for the difference in value of the horse as it was, and a sound horse, would manifestly have been unjust. The only way in which the plaintiff could be made good, as the result of the transaction, was that she should be entitled to recover the purchase price of the horse which the defendants retained. If she recovered anything less after the defendants had accepted the horse, the defendants would have had the horse and a portion of the purchase price, and the effect would have been that they would have received a premium for their breach of warranty, while the plaintiff would have had neither horse nor money, except that portion of the purchase price which the jury gave back to her. She clearly could have been made good as the result of the transaction-—-as the jury found — only by giving to her precisely what' was given to her, the total amount of the price she paid for the horse and interest. The learned court was correct, therefore, in not applying to this case the rule which usually obtains in actions for a breach of warranty' of chattels.

It is not necessary, therefore, to discuss under what circumstances the court will grant a new trial when an error has been made which has not been excepted to, for nothing of the kind appears in this case.

The judgment must be affirmed, with costs.

Van Brunt, P. J., Barrett, Williams and Patterson, JJ., concurred.

Judgment affirmed, with costs.  