
    R. G. WINN v. C. W. FINCH & SON.
    (Filed 29 March, 1916.)
    1. Vendor and Purchaser — Contracts—Warranty—Reassurance—Verdict.
    Where the seller warrants a horse to he gentle, and the purchaser carries it hack to his stahles after seeing the horse frightened by an automobile, which had caused injury, and the seller assures him that the horse was as represented, and only “feeling good” at the time he was so frightened, hut offers to take him hack and surrender the npte for the purchase price he had received, which offer the buyer declines to accept, and keeps the horse, though convinced that he was not gentle as warranted, and the jury, under proper instructions from the court, find upon the issue, that there had been a breach of the warranty, it is equivalent to a finding, that the seller renewed his original assurances, upon which the buyer, in the exercise of ordinary care and prudence, relied.
    
      2. Trials — Evidence—Nonsuit—Appeal and Error.
    In this action for damages for a breach of warranty of a horse, brought by the purchaser, it is held that the evidence was sufficient to take the case to the jury, and the defendant’s motion to nonsuit was properly denied. Hodges v. Smith, 158 N. C., 256, cited and applied.
    3. Vendor and Purchaser — Contracts—Warranty—Breach—Damages.
    Upon the breach of warranty of a horse, the purchaser is not bound to accept the seller’s offer to rescind the contract, but may keep the horse and maintain an action for damages for the breach.
    4. Vendor and Purchaser — Contracts—Warranty—Breach—Measure of Damages.
    The measure of damages for a breach of warranty in the sale of a horse is the difference between its actual value and what the value would have been had the animal been as warranted, and damages for a personal injury caused by the horse not being gentle as warranted was properly excluded in this case.
    5. Judgments — Verdicts — Vendor and Purchaser — Contracts—Warranty — Breach — Damages,
    Where the verdict of the jury upon the issues has established the breach of warranty sued on, and has assessed the amount of the plaintiff’s damages, the judgment rendered must be in accordance therewith; and a judgment which requires the defendant to give up a note he has received for the purchase price, and the plaintiff to give up his possession of the horse to defendant, is erroneous.
    Appeal from Peebles, Jat August Term, 1915, of FeaNkliN.
    Plaintiff brought this action to recover damages, for a breach of warranty in the sale of a horse. He alleged that defendants, who dealt in live stock at Henderson, N. C., had tried to sell him a horse, but they had no horse that suited him, and promised to let him know when they got one of the kind he wanted. In March, 1914, Mr. Finch told him that he had the very horse he wanted and that he would suit exactly. Plaintiff bad stated to bim tbat be wished to buy a borse tbat was perfectly gentle and sound and so gentle tbat bis ebildren could drive bim anywhere, and also suitable for other purposes. Pinch said tbat plaintiff’s little boy could drive the borse. After looking at the mare defendants showed bim, plaintiff bought her at $125 and gave bis note for the price. He found out after driving her tbat she was always frightened by automobiles, not only while they passed by, but after they bad passed her, and she would try to move every time she met one. In May, 1914, when plaintiff, with bis son and daughter, was driving her to .a buggy from Henderson the mare was frightened at an automobile and ran away, injuring plaintiff and bis daughter severely, but not dangerously. When plaintiff first complained about the mare, Mr. Finch told bim tbat be knew she was perfectly gentle, but if be did not want her, they would exchange for any other borse in the stable. Plaintiff looked at the horses, but could not find one tbat suited bim, and late in evening of the same day Mr. Finch, said to plaintiff tbat while be knew the mare was gentle, “and was just feeling good” when she passed the automobiles, be could leave her there and get bis note,- and plaintiff replied tbat be would take the mare home, and did so. It was after this occurred tbat be drove her to a buggy, and she ran away and injured plaintiff and bis daughter. After the runaway happened be carried the mare back to Mr. Finch and asked bim to take her back and give up bis note, which Finch refused to do. Plaintiff also testified tbat the mare was wind-broken. He stated tbat be relied on the representations of Mr. Finch as to the mare’s gentleness and soundness, both ivben be first bought- her and at the time be took her back, and was assured by Mr. Finch as to her good qualities, and tbat be took her back the second time because he bad relied on the first and second assurances tbat the mare was gentle and sound.
    There were some variations from the above statements of the plaintiff in the cross-examination, but nothing tbat materially changed the substance of them, but only tended to weaken their force. There was evidence in corroboration of plaintiff and other evidence tending to contradict bim.
    The court submitted to the jury three issues, which, with the answers thereto, are as follows:
    1. Did/ defendant warrant the mare to be gentle and sound on 18 March, 1914? Answer: “Yes.”
    2. If so, was the said warranty false? Answer: “Yes.”
    3. What damage is plaintiff entitled to recover, if any? Answer: “$125.”
    The judge charged the jury upon the third issue as follows: “If you answer the first and second issues ‘Yes,’ then you come to the question of damages. - The court charges you that the measure of damages in the case of false warranty is the difference between the value of the horse as she was and what she would have been worth if she had been as she-was warranted to be.” He excluded all damages for injuries to -plaintiff and his daughter.
    Upon the verdict, the court rendered the following judgment :■ “This cause being heard at this term before Hon. R. B. Peebles, judge, and a jury, and the jury having found the issues in favor of plaintiff and assessed his damages at $125, and it appearing to the court by the admissions of the parties that plaintiff has never paid defendant for the mare, and that he now has the mare, and that defendant has plaintiff’s note, the court doth adjudge that defendant do surrender to plaintiff the note for the mare, and that such surrender forthwith shall satisfy and extinguish the damages established in plaintiff’s favor by the verdict, .and that defendant do pay the costs of the action. It is further adjudged that plaintiff do forthwith surrender to defendant the mare in question.”
    Plaintiff excepted, and moved for judgment, according to the verdict, 'for $125, with interest and costs; and to the refusal of this motion, he again excepted and appealed.
    Defendant also excepted because the court refused to nonsuit, and appealed.
    • W. II. Yarborough and T. M. Pittman for plaintiff.
    
    
      T. T. Hieles for defendants.
    
   DEFENDANTS’ APPEAL.

Walker, J\,

after stating the case: The court held, and so charged the jury, that there was no evidence of unsoundness, and confined the inquiry to the ungentleness of the mare. Defendants contend that after plaintiff had time to ascertain the qualities of the mare, and that she was frightened by automobiles, he brought her to defendants’ stables and they offered to take her back and surrender the note given for her price, and plaintiff rejected the offer and took the mare to his home. Plaintiff replies that he was not bound to rescind the contract at that time, as there already had been a breach of the contract, and he had an election to rescind or not, and, besides, that he acted upon defendants’ original warranty and further assurance given, when he returned to the stable with the mare, that defendants knew the mare was gentle .and sound. It is true that this was denied by the defendants, but the court left this controversy to the jury under an instruction which was perfectly fair to defendants and stated the rule of law correctly. The jury evidently found, under the evidence and the charge, that the defendants renewed their original assurances of soundness and gentleness, and tbe plaintiff, in tbe exercise of ordinary care, relied upon it, and governed bimself accordingly; tbat be did wbat a man of ordinary prudence would bave done in tbe same circumstances. But tbe motion of defendants to nonsuit only raises tbé question wbetber tbe plaintiff’s evidence, in any reasonable view of it, sustained bis cause of action, and we tbink tbat it did, and tbat tbe court properly submitted tbe issue to tbe jury.

Tbis case is somewhat like Hodges v. Smith, 158 N. C., 256, where it is said, at pp. 262, 263, after citing numerous cases: “Applying tbe principle as thus gathered from tbe authorities, tbe court erred in not submitting tbe case to tbe jury to find tbe facts and to pass upon tbe question of warranty. Tbe language of tbe parties, as used at tbe time of tbe transaction, is quite as strong to show a warranty as any to be found in tbe cases we bave cited. Tbe defendant was a dealer in horses, and by tbe testimony as we now bave it he, at least, affirmed tbat tbe horse be sold to tbe plaintiff was of tbe description be wanted — kind and gentle in harness, and so well broken tbat even a lady could drive him with safety. Tbe plaintiff says tbat be relied upon tbat representation, and bought the horse believing it to be true, and being induced thereby to buy. Tbe jury must decide wbetber it was intended and accepted as a warranty, and also, upon tbe evidence, wbetber there has been a breach thereof, there being evidence of a breach for them to consider.” Tiffany on Sales, 162; Wrenn v. Morgan, 148 N. C., 101; Harris v. Cannady, 149 N. C., 81.

Tbe buyer of a horse warranted to be gentle and kind in harness is not bound to accept an offer of tbe seller to rescind tbe contract, if tbe warranty has been breached, but may keep tbe animal and rely on bis action for tbe breach and recover bis damages. Kester v. Miller, 119 N. C., 475; Robinson v. Huffstetler, 165 N. C., 459; Alpha Mills v. Engine Co., 116 N. C., 797; Lewis v. Rountree, 78 N. C., 323; Cox v. Long, 69 N. C., 7; Cable Co. v. Macon, 153 N. C., 150; 35 Cyc., 434. It is said in Gox v. Long, supra: “Where an article is warranted, and tbe warranty is not complied with, tbe vendee has three courses, any one of which be may pursue: (1) He may refuse to receive tbe article at all; (2) be may receive it and bring a cross-action for a breach of tbe warranty; or (3) be may, without bringing a cross-action, use tbe breach of warranty in reduction of tbe damages in an .action brought by tbe vendor for tbe price.” In tbis respect we find no error, as tbe plaintiff bad tbe right to sue upon tbe warranty, notwithstanding wbat occurred between him and Mr. Finch at tbe stable when be came back with tbe mare and complained of her ungentleness. Tbe motion to nonsuit was, therefore, properly denied, there being some evidence of a breach of tbe warranty.

Tbe court applied the correct rule as to the measure of damages. Parker v. Fenwick, 138 N. C., 209; Spiers v. Halsted, 74 N. C., 620; Mfg. Co. v. Gray, 126 N. C., 108; Marsh v. McPherson, 105 U. S., 709; Cable Co. v. Macon, supra; Robertson v. Halton, 156 N. C., 215; Guano Co. v. Live-stock Co., 168 N. C., 442-450. “The general rule as to the measure of damages on a breach of warranty is that the buyer is entitled to recover the difference between the actual value of the goods and what the value would have been if the goods had been as warranted, and in the application of the rule it is held that the fact that the goods were actually worth the price paid for them is immaterial. . . . It is true that in some cases the rule has been stated that the measure of damages is the difference between the purchase price and the actual value of the goods, but in nearly all of these cases the theory undoubtedly is that, in accordance with the general rule, if there is no other evidence of the actual value of the goods, the piurchase price will be regarded as the actual value.” 35 Cyc., 468.

It follows there was no error in defendant’s appeal.

No error.

PLAINTIFFS APPEAL.

If, as we have shown in the defendant’s appeal, the plaintiff was not bound to rescind the contract and give up the mare upon a surrender of the note, the court had no power to rescind it without his consent. He had obtained a verdict for the damages resulting from the breach of warranty, and the action sounded only in damages.' The court should have set aside the verdict, if deemed to be against the weight of the evidence, or if it considered the damages as excessive. This was a matter lying within its discretion. But it did not do this, but entered a judgment which was not germane to the cause of action or to the verdict, but quite different, in its nature, from both of them. If the verdict was allowed to stand, the plaintiff was entitled in law, and as matter of right, to a judgment for the amount of damages assessed by the jury and to his costs; and, therefore, the judgment rendered by the court will be set aside and a judgment entered as above indicated.

If the parties hereafter agree that the contract may be rescinded, or that the amount recovered may be credited on the note, or if they agree upon any other terms of settlement, judgment may be entered accordingly; but otherwise, or without their consent, no judgment other than one upon the verdict, and for costs to the plaintiff, can be given.

It may be that the amount of damages indicates that the jury were endeavoring to adjust the controversy on equitable terms, amounting to a rescission, believing that the recovery would offset the note and that the horse would be given up to the defendants. But we cannot act upon this supposition, as it was not the question submitted to the jury. We must regard tbe verdict as strictly responsive to the-issue, and only as assessing plaintiff’s damages. It is a cardinal rule that the judgment must follow the verdict, and if the jury have given a specified sum in an action for damages, the Court cannot increase or decrease the amount, nor can it change the substance of the verdict; the remedy for any error committed by the jury being a new trial. Black on Judgments (2 Ed.), sec. 142. It follows, therefore, that the judge erred in reforming the verdict or in giving a judgment contrary to its findings.

Since this opinion was prepared, the parties have agreed that the amount of the recovery may be credited on the note, and this will be done in the court below and provided for in the judgment, the costs to be paid by the defendant. There was error in this appeal.

Error.  