
    Lewisburg.
    Thornton v. Thompson & als.
    
    (Absent Brooke, J.)
    1847. July Term.
    
    1. On a warranty of soundness of an animal, it is for the jury to decide what is embraced therein. And on that question, the qualities and uses for which the animal was sold and purchased may he referred to as explaining what was intended to be included in the warranty.
    2. Upon a warranty of the soundness of an animal sold, the measure of damages is the difference between the value of the animal sound as warranted, and his value at the time of the sale in the condition ho really was: and the price at which the animal was sold is the proper evidence of value at that time, if sound to the extent of the warranty. And the rule is the same whether the purchaser offers to return the animal or not.
    This was an action of debt in the Kanawha Circuit Court, by Daniel F. M. Thornton against Francis Thompson and others, on a bond for 600 dollars, given in part payment for a jack sold by plaintiff to the defendants.
    The defendants filed a special plea under the statute, alleging that plaintiff at the time of the sale, “ warranted the jack to be sound and healthy in every respect, and a vigorous and successful foalgetter; that he would be three years old only the spring succeeding the sale, and that he would grow much larger than he then was.” And the plea laid a breach of the warranty in all these respects. There was a general replication and issue.
    In support of the plea the defendants proved, that they agreed to pay 1500 dollars for the jack, and that the purchase money, except the bond in suit, had been paid. That the jack was sold by appellant through his agent, and purchased by appellees to be used as a foalgetter of mules. That the agent of appellant at the time of the sale, stated, that the jack was not three years old, that he had not been employed in covering, but had been put to a mare the previous season, and she was in foal j and that he believed him to be as vigorous as young jacks usually were; and also warranted the jack to be sound in every particular, except the scratches, then visible. It was further proved, that the next season the jack was attempted to be used as a foalgetter of mules, and could not be induced to touch a mare, although in apparent good condition for such service. That shortly after the jack was put to his stands his eyes became weak, and continued to weaken until he became blind. That several gentlemen thought the jack old; but from his appearance only. The defendants also proved by a witness, that from a recent acquaintance with the jack, he should have valued him, if sound and a good foalgetter, at 150 to 200 dollars. The jack was not returned to the plaintiff, nor was any offer made to return him.
    The counsel of the plaintiff insisted in the argument of the cause, that by the proof the warranty was confined to diseases at the time of the sale, other than the scratches, and did not sustain the warranty in the plea that he was a vigorous and successful foalgetter: and further, if the warranty was established, that the proper measure of damages should be, the difference in value at the time of sale, if sound, and his value with the unsoundness proved to exist; without regard to the price paid or agreed to be paid by the appellees.
    At the instance of defendants’ counsel, at the conclusion of the argument, the Court instructed the jury to the effect following:
    1st. That whether a warranty of the jack being sound in every particular, except the scratches, included his being an ordinarily vigorous foalgetter, was a question for the jury to decide ;• and in the consideration thereof, the qualities and use for which the jack was sold and purchased, might be safely referred to as explaining what was intended to be included in the warranty by the parties at the time of the sale.
    
      2d. That upon proof of the warranty to be such as alleged in the plea, the measure of damages ought to be the difference between the value of the jack sound, as warranted at the time of the sale, and his value at that time, in the condition he really was: and that the agreed price at which the jack was then sold by the appellant, is the proper evidence of value at that time, as agreed by the parties, if sound to the extent of the warranty, rather than the opinion of the witnesses, as to the probable intrinsic value of the animal if in a sound condition at the time of the sale. To these opinions of the Court giving the instructions aforesaid, the appellant excepted.
    The jury found a verdict for the plaintiff for the amount of the bond sued on with interest, and for the defendants for 1350 dollars damages : and the Court gave judgment accordingly, with costs to the plaintiff to the time of filing the special plea, and to the defendants from that time ; and directed that the damages and costs adjudged to the defendants, should be set off in extinguishment of so much of the debt, interest and costs recovered by the plaintiff; and if after such set off and extinguishment it should be found that the recovery of the defendants exceeded the recovery of the plaintiff, that the defendants should have execution against him for such excess.
    The plaintiff thereupon applied to this Court for a supersedeas to said judgment, which was granted.
    
      B. H. Smith, for the appellant,
    insisted that the first
    instruction was erroneous : 1st. Because it referred to the jury the question, as to what was embraced in the warranty. The facts being ascertained, it was insisted that the Court should have decided whether the warranty proved extended to the breach stated in the plea. Richardson v. Brown, 8 Eng. C. L. R. 339. Secondly. The Court in its instruction referred the jury to but a part of the evidence bearing upon the question submitted to them.
    On' the second instruction, it was insisted, that though the rule for ascertaining the damages upon a breach of warranty was properly stated, the Court erred in telling the jury that the price agreed on for the animal was the proper evidence of his value at the time of the sale. A distinction was taken between the cases in which the property had been returned and the contract rescinded, and the cases in which the property was retained. In the first it was admitted that the price given was the proper measure of value at the time of the sale ; and to this class it was insisted, that the cases cited by the counsel for the appellees belonged. But in the second class of cases, it was insisted, that the true value of the property at the time of the sale was to be taken; and the party setting up the warranty was not to be relieved from a bad bargain, by the damages recovered for a breach of the warranty. And for this the counsel referred to Welsh v. Carter, 1 Wend. R. 185.
    
      Summers, for the appellees,
    insisted that it was proper to refer to the jury the question, What was embraced in the warranty? Duffie v. Mason, 8 Cow. R. 25; Cook v. Moseley, 13 Wend. R. 277. He insisted further that the Court did not instruct the jury on the weight of the evidence, but only referred them to the materials from which they might deduce a correct opinion. And to shew to what a warranty of soundness would extend, he referred to Ward v. Stephens, 3 M’Cord’s R. 251.
    On the second instruction, he insisted, that there was no difference in principle between the two classes of cases stated by the counsel for the appellant; and that the authorities fully sustained the proposition that the measure of damages for a breach of warranty was the difference between the price paid and the value of the property in the condition it really was. He referred to Fielder v. Starkin, 1 H. Bl. 17; 3 Stark. Evi. 1666; 2 Id. 645: Caswell v. Coare, 1 Taunt. R. 565: Stout v. Jackson, 2 Rand. 132; Threlkeld's adm’r v. Fitzhugh’s ex'or, 2 Leigh 451.
   By the Court.

Affirm the judgment.  