
    Leavell v. Coleman.
    (Decided October 17, 1911.)
    Appeal from Christian Circuit Court.
    1. Warranty of Personal Property. — In an action upon a convenant of warranty tbe measure of damage is tbe difference between the article as delivered and the article as warranted; but when there is a total broach, of warranty and as a consequence the purchaser has derived no benefit from the property, it is not error to instruct the jury that if they find for the plaintiff they should allow the purchase .price.
    2. Warranty — Expense Incurred in Attempting Cure. — When the purchaser of an animal under a warranty of soundness discovers soon after the purchase that it is unsound, and is advised by the seller to keep- the animal and give her attention, the seller is liable for the necessary expense incurred in giving the treatment advised.
    DOUGLAS BELL, TEMBLE & REILL for appellant.
    W. T. FOWLER for appellee.
   Opinion of the Court by

Judge Carroll

— Affirming.

On April 18, 1910, the appellee purchased from the appellant a mnle for $250. The appellant warranted the mnle to be sound in every particular. On April 30th, the mnle died, and this suit was brought by appellee to recover on tbe warranty tbe price paid for tbe mnle and $50 medical expense and attention rendered to the mnle which it is alleged appellant directed appellee to incur in an effort to cure the mnle.

In his answer' the appellant admitted that he warranted the mnle to be sound, and alleged that she was sound at the time he sold her, and that the sickness from which the mnle died was contracted after the sale and delivery. He further denied that he directed the appellee to furnish any medical attention to the mnle or that he was liable for any sum expended for this purpose.

Upon a trial before a jury, a verdict was returned in favor of appellee for $250. A reversal of the judgment upon this verdict is asked because the verdict is not sustained by the evidence and for error of the court in improperly instructing the jury.

As the warranty of the soundness of the mnle was admitted, the only issue upon this feature of the case was whether the mnle was unsound and suffering from the disease from which she died at the time of the sale, or, contracted the disease from which she died after the sale. It is hardly necessary to relate in detail the evidence upon this point, as we think there was sufficient to warrant the jury in finding that the mnle was diseased, or in other words, not sound, at the time of the sale, and that from the effects of the disease, then in its incipient state, the mnle died. The man who bought the mnle for appellee testifies that fie noticed “sfie looked a little sleepy and droopy and tfiat fie called Lea veil’s attention to tfiis fact, and Leavell said sfie was a little sore from shipping and would come around all right.” He further testified tfiat he took her home on Monday afternoon,and the next morning sfie refused to eat her food and was still looking droopy; and continued to grow worse from tfiat time until the 30tfi, when sfie died. That sfie was only worked part of one day after the purchase. He further said tfiat a few days after the sale fie saw Leavell and told blm the mule was in a had condition, and that Leavell told him sfie would get well and advised him what treatment to give her; and tfiat fie gave her the treatment, and also sent for a veterinary. It is further shown tfiat appellee gave the mule all necessary medical attention and took good care of her and made every effort to restore her to health, and tfiat the expense incurred was about $25. Other witnesses testified to the sickly condition of the mule the day sfie was brought home, and the days following, and said tfiat the mule had a severe case of distemper when Mr. Lowery owned her, shortly before Leavell purchased her and sold her to appellee.

On the other hand, Leavell testifies tfiat the agent of appellee four or five days after sfie purchased the mule paid him part of the purchase money and did not make any complaint of the condition of the mule, tfiat fie had owned her about three weeks and sfie was sound when fie sold her. The veterinary, who saw the mule about a week before sfie died, said tfiat sfie then had or was threatened with pneumonia, and was in a bad condition; but fie does not state definitely how long she had been suffering with tfiis disease.

The court instructed the jury that—

“If they believed from the evidence tfiat at the time of the purchase of the mule tfiat said mule was unsound and diseased, and was at said time suffering from a severe disease, which soon afterwards proved fatal, they will find for plaintiff the contract price of said mule, to-wit: $250, with interest from April 22d, 1910, until paid; and should they further believe from the evidence that the plaintiff through her agent immediately upon the discovery of the diseased condition of the mule notified the defendant of the condition of the mule and made demand on defendant to rescind said sale and offered to return said mule, but defendant insisted on her keeping said mule and doctoring it with certain remedies, stating that if the mule did not speedily recover that he would stand to his warranty and refund the purchase money, and the plaintiff did keep the mule as directed and expend labor and money in caring for said mule and securing a veterinary surgeon to examine and doctor said mule, they will in addition to the $250 above mentioned find for the plaintiff such a sum of money as will reasonably compensate her for her trouble and expense in keeping and caring for and doctoring said mule after it was tendered back to defendant, if she was so tendered, not exceeding the sum of $50.”

One objection to this instruction urged by appellant is that it does not lay down correctly the measure of damage plaintiff was entitled to recover. Counsel say “the correct measure of damages in a case like this for a breach of warranty is the difference in value between the article as delivered and the'article as warranted.” Counsel states correctly the measure of damages in cases for a breach of warranty, but we are unable to perceive in what respect the instruction given was prejudicial. Here there was a total breach of warranty and it is conceded that the mule was worth the purchase price. Appellee derived no benefit whatever from the mule, and was entitled to recover upon the warranty the full purchase price paid, if anything. It is also insisted that it was error to instruct the jury that they might allow anything for expense incurred in trying to cure the mule, as appellee did not tender her back after discovering her condition and before incurring the expense. There was, however, sufficient evidence upon this point to justify the court in submitting the question of expense to the jury, as there was testimony for appellee that she would have returned the mule except for the fact that when Leavell’s attention was called to her condition, he advised appellee to keep her and instructed what kind of treatment to give. When the purchaser of an animal under a warranty of soundness discovers soon after the purchase that it is unsound, and upon learning this talks the matter over with the seller who advises the purchaser to keep the animal and to give her attention, the seller is liable for the necessary expense incurred in giving the treatment advised by the seller. Sapp v. Bradfield, 137 Ky., 308. We might further add that it appears from the verdict, that the jury did not allow appellee anything for expense incurred in treatment of the mule.

Wherefore, the judgment is affirmed.  