
    Shoe v. Maerky, Appellant.
    
      Sale — Warranty—Breach—Deceit—False representations.
    
    Where a statement in assumpsit for a breach of a warranty in the sale of a chattel, sets forth the warranty and the breach, the mere fact that the statement also avers that the representations as to the warranty were not only untrue, but were fraudulently made with intent to deceive, will not prevent a recovery for the breach of the warranty.
    In an action of assumpsit to recover damages for the breach of a warranty in the sale of a steam engine, the evidence tended to show that the plaintiff sought to buy an engine that would generate twelve horse power, and that the defendant, who was informed as to the work it was expected to do, represented that he could and would sell him one of that capacity. It appeared that defendant was a dealer in secondhand engines, and made a specialty of repairing and rebuilding engines. The evidence showed that the engine was only ten horse power, and the defendant practically admitted this, although he swore that he represented it only as a ten horse power. Held, that the case was for the jury and that a verdict and judgment for plaintiff should be sustained.
    
      Sale — Warranty—Breach—Measure of damages — Damages—Steam engine.
    
    The measure of damages in an action for a breach of warranty of a steam engine is the difference between the actual value of the engine as it was at the time of the sale, and its value if it had been as warranted.
    In such a case plaintiff showed that he paid $325 for the engine, and that after using it continuously for upwards of a year he realized from it $175. He offered no direct evidence of the actual value at the time of the sale, of the engine he bought; and presented nothing to show the value at the same date, of the engine he should have received had defendant's warranty been satisfied. The jury returned a verdict for plaintiff for $191. Held, that the judgment should be reversed.
    Argued Oct. 16, 1907.
    Appeal, No. 66, Oct. T., 1907, by defendant, from judgment of C. P. No. 4, PMla. Co., Sept. T., 1905, No. 671, on verdict for plaintiff in ease of W. W. Shoe v. Emil Maerky.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Assumpsit to recover damages for breach of warranty in the sale of a steam engine. Before Audenried, J.
    The court charged in part as follows:
    [The only man who has tested that engine, who has come here and given you any statement of the result of his test, is Mr. Schramm. What does Schramm say about the result of his testing of the engine? He tells you that the engine developed eight horse power. Nobody else has testified on the subject. If Mr. Schramm is to be believed, and I do not see how you can get away from believing his testimony, it seems to me the agreement between Mearky and Shoe, whether it was that the engine should develop ten horse power on twelve horse power, was broken, because eight horse power is less than either of those figures.] [4] [Of course, Schramm may be wrong about this, but the only fact in the case which could raise any doubt, it seems to me, in relation to Schramm’s accuracy of observation and test, is the fact that Mr. Shoe retained the engine which Maerky sold him so long before making any complaint to Maerky about its failure to develop the horse power which Mr. Shoe says Maerky told him it would.] [11] That fact standing alone would be rather important. [If a man accepts goods and retains them for an appreciable time, it raises a presumption that if he complains about them afterwards as failing to comply with the warranty in relation to their quality which the seller has given with them, that he is wrong in his complaint, and that the goods have come up to what they were warranted to be. That is the presumption. I do not mean to say it is a presumption that cannot be rebutted, but that is the way the law looks at conduct of that kind. Where one dilly-dallies about a matter of this kind, and keeps the goods for a long while without saying anything on the subject of their defects, it is pretty fair to presume, and the law raises that presumption, that the goods are really what they were warranted to be by the seller. However, the purchaser of the goods can, by proper testimony, dispel that presumption of the law, and, in this case, the purchaser of the engine, Mr. Shoe, has attempted to do that. He tells you that he had no testing machine in his shop, that he had no means of determining just what was the horse power of the engine Maerky delivered to him, and that he had only become suspicious of it, only become doubtful as to whether it was up to the warranty or representation in relation to its power that Mr. Maerky made, when it failed to operate the machines in his establishment.] [5] [These machines had not been installed at the time the engine was installed. They were put in afterwards, and they were put in by degrees, not all at once. It was not until within a comparatively short time of when Shoe made his complaint to Maerky of the inefficiency of the engine that it was tried in the operation of all the machinery that Mr. Shoe told Maerky at the time he bought the engine he intended to put in his shop. The presumption from his retention of the engine in relation to horse power would, if this is to be believed, seem to be overcome, and you have nothing in the case except what Mr. Schramm says in relation to his test of it.] [12] Schramm said that the engine proved, on test, to be capable of developing no more than eight horse power, which, as I have already pointed out to you, is less than the horse power which it ought to have generated under the contract between Maerky and Shoe, whether you take that contract to be that it was a ten horse power engine or a twelve horse power engine.
    
      Suppose you come to the conclusion that Mr. Maerky’s warranty in relation to the engine’s power was broken; if you take that view the plaintiff here, Mr. Shoe, is entitled to recover a verdict against him, and you are then confronted with the question as to what award you shall make in his favor against the defendant. The measure of his damage for a breach of the warranty is compensation. What did he lose through Maerky’s failure to deliver such an engine as he said he would? The law reckons that loss in this way: [The jury must first determine what would have been the market value of such an engine as Mr. Maerky agreed to deliver.] [6] Then they must fix the market value of the engine which he actually did deliver. It is quite sure that if there is a difference between those two values, that difference is part of the plaintiff’s loss. If, for example, he was entitled under his contract to receive an engine whose market price was $350, and, as a matter of fact, he received an engine whose market price was only $160, his loss would be in this respect $190. The figures I have referred to are the figures testified to by certain of the witnesses as to the value of a twelve horse power engine and the value of the engine which was actually delivered by Mr. Maerky. I give those *' figures as illustrations of my meaning, and leave it to you to say whether those are the correct market values of the engine which ought to have been delivered by the defendant to the plaintiff and the engine which he did actually turn over to Mr. Shoe.
    Verdict and judgment for plaintiff-for $191.47. Defendant appealed.
    
      Errors assigned among others were (4-6, 11, 12), above instructions, quoting them.
    
      J. H. Brinton, for appellant.
    — The gist of the action is deceit: Erie City Iron Works v. Barber & Co., 102 Pa. 156; Shaw v. Fleming, 174 Pa. 52; Clark v. Lindsay, 7 Pa. Superior Ct. 43; Dutton v. Pyle, 7 Pa. Superior Ct. 353; Van Leer v. Earle, 26 Pa. 277; Gilberton v. Traction Co., 22 Pa. Superior Ct. 279.
    No warranty existed either express or implied: MacFarland v. Newinan, 9 Watts, 55; Matthews v. Hartson, 14 Pitts. L. J. 577; Livingston v. Stevenson, 163 Pa. 262; Norris v. Reinstedler, 90 Mo. App. 626; Ramming v. Caldwell, 43 111. App. Ct. 175.
    February 28, 1908:
    The market value of the engine at time of sale was not shown: Himes v. Kiehle, 154 Pa. 190; Seigworth v. Leffel, 76 Pa. 476; Mining Co. v. Jones, 108 Pa. 55.
    The retention of the engine was a waiver of any warranty that might have existed: Armour v. Produce Co., 28 Pa. Superior Ct. 524; Summers v. Ritchie, 30 Pa. 147; Tete Bros. v. Eshler, 11 Pa. Superior Ct. 224.
    
      Walter 'Biddle Saul, with him Maurice Bower Saul, for appellee.
    — There was no technical objection to the judgment of the court below: Van Leer v. Earle, 26 Pa. 277; Dutton v. Pyle, 7 Pa. Superior Ct. 353.
    It is submitted that an express warranty was clearly shown: Joseph v. Richardson, 2 Pa. Superior Ct. 208.
   Opinion by

Head, J.,

Had this action been trespass for deceit, the statement would have supported a recovery by the plaintiff because it avers that the representations' as to the quality and power of the engine, on the strength of which it was bought, were not only false in fact, but knowingly and fraudulently so, made for the purpose of deceiving. This scienter is the gist of the action for deceit: Erie City Iron Works v. Barber & Co., 102 Pa. 156. But the action is assumpsit to recover damages by reason of the alleged failure of the engine to measure up to the seller’s representations as to its capacity, which representations, it is claimed, amounted to a warranty. If indeed these representations, construed as the law would construe them, amounted to a warranty that the engine would generate twelve horse power, and there was a breach of that warranty, the mere fact that the statement avers that the representations were not only untrue, but were fraudulently made with intent to deceive, will not prevent a recovery for a breach of warranty in an action of assumpsit: Vanleer v. Earle, 26 Pa. 277; Erie City Iron Works v. Barber, 102 Pa. 156; Dutton v. Pyle, 7 Pa. Superior Ct. 353.

There was evidence from which the jury could find that the plaintiff sought to buy an engine of certain designated capacity, viz.: one that would generate twelve horse power, and that the defendant, who was informed as to the work it was expected to do, represented that he could and would sell him one of that capacity. Following the doctrine laid down by this court in Joseph v. Richardson, 2 Pa. Superior Ct. 208, where the whole subject of warranty in the sale of chattels was elaborately discussed and many authorities were reviewed, we are constrained to hold that such a representation amounted in substance to a warranty that the engine sold and delivered was of the size or capacity specified. And this would be especially true in the light of the testimony delivered by the defendant himself that he was not merely a dealer in secondhand engines, but made “a specialty of repairing and rebuilding gas and gasoline, engines;” that he had built or reconstructed many, and that the particular engine in question had been remodeled or reconstructed by him after he bought and before he sold it to the plaintiff. Assuming, then, the existence of a warranty that the engine was twelve horse power, there was evidence from which the jury could find a breach of it. Without adverting to the testimony on this subject offered by the plaintiff, it seems sufficient to note that the defendant himself practically admits the engine was only ten horse power. Of course he couples that with the further statement that he only represented it as a ten horse power engine, but the verdict has disposed of that issue adversely to his contention.

We must therefore accept the verdict as establishing that there was a warranty and a breach, and the right of the plaintiff to recover could safely rest on these two established facts unless the right was lost or waived by an undue and unreasonable delay in making complaint. Whether or not there was such delay, under the peculiar circumstances of this case, became, we think, a mixed question of law and fact. It was fairly submitted to the jury under proper instructions and, like the other questions previously discussed, was settled by the verdict.

What, then, was the proper measure of the plaintiff’s damages arising from the breach? Upon this point the decisions leave no room for doubt. “The measure of damages in an action for a breach of warranty of a steam engine is the difference between the actual value of the engine as it was at the time of the sale and its value if it had- been as warranted:” Himes v. Kiehl, 154 Pa. 190. In the general charge the court below so instructed the jury. But we can see nothing in the record to indicate that the verdict was, in any sense, responsive to such instruction. The plaintiff offered no direct evidence of the actual value, at the time of sale, of the engine he bought; and certainly presented nothing to show the value, at the same date, of the engine he should have received had the defendant’s warranty been satisfied. He did show that he paid $325 for the engine he got, and that after using it continuously for upwards of a year, he realized from it $175. Unless the jury mistakenly accepted this depreciation in value as the measure of the plaintiff’s damages, we are unable to discover any basis in the evidence on which the verdict could rest. The cause must therefore go back to be retried on the correct measure of damages as declared by the Supreme Court and herein indicated.

If the plaintiff can again satisfy a jury that the defendant warranted the engine to be of twelve horse power; that there was a breach of that warranty; that he honestly and in good faith made complaint as soon as he was reasonably satisfied, under the circumstances, that the engine he got was not the engine he bought, then he will have made out a case. But if he seeks to recover more than nominal damages, he must establish by proof that he has suffered such actual injury as the law recognizes as ground for substantial damages in cases of this character.

Judgment reversed and a venire facias de novo awarded.  