Lane v. Lantz

Babtol, J., delivered the opinion of this Court. The appellee purchased from the appellant’s intestate a mare warranted to be sound, and paid the price agreed on ; at the time of the sale the mare was unsound, being affected with lung fever, of which disease she died six or seven days thereafter. This suit was brought for a breach of the warranty. At the trial, the Circuit Court instructed ■the jury, that if they found the sale and the warranty, and that at the time of the purchase the mare was unsound, and died in the appellee’s hands, in consequence of such unsoundness, and that the price was paid, then the appellee was entitled to recover, “and the measure of damages was the value of the mare at the time of the sale.” The appellant contends that this instruction was erroneous as to the measure of damages.

In Mayne on Damages, 88, (95 L. L.,) the law in cases like this is thus stated: “Where the article has not been returned, the measure of damage will be the difference between its value, with the defect warranted against, and the value which it would have borne without that defect.” The author says, “the weight of authority in England is strongly in favor of the rule as stated above, and the doctrine in America is the same.” This is no doubt the correct rule. See Sedgwick on the Measure of Damages, 287 to 291, (marginal paging,) where this subject is considered and the cases collected. See ²¹⁷ also Clare vs. Maynard, 7 Car. & P., 741 ; Bridge vs. Waine, 1 Stark. Rep., 504 ; Caswell vs. Coare, 1 Taunt., 566 ; Carey vs. Gruman, 4 Hill, 625 .

The rule is also established by these cases that the price paid is strong prima facie evidence of the value of the article, if it had been sound, or corresponded with the warranty. In this case there was no other evidence offered, either by the plaintiff or defendant, of what would have been the actual value of the mare at the time of the sale, if she had been sound. So far as that item was concerned, therefore, the price paid might properly be considered as fixing such value, and, in the absence of other proof, there would be no error in so instructing the jury. But the appellant contends that the jury ought to have been instructed to deduct from this sum the actual value of the mare, at the time she was sold, in her unsound condition.

There was no direct proof offered to show what her actual value was at the time of the sale ; the proof was that she was then affected with a disease, of which she died in a