exchequer not to be affected by an accident to the horse Where deafter the sale without any default in the buyer. (x) fect occurs after sale. goods Buyer loses his right of returning goods by equivalent any act to accept § 901. The buyer will also lose his right of returning delivered to him under a warranty of quality, if he has shown by his conduct an acceptance of them, or if he has retained them a longer time than was reasonable for a trial, or has consumed more than was necessary for testing them, or has exercised acts of ownership, as by offering to resell them, (1) all of which acts show an agreement to accept the goods, (y) but do not constitute an abandonment of his remedy by cross action, or his right to insist in defence upon a reduction of price. (z) ance, but not his other reme dies. Buyer can breach of warranty in defence to a nego § 902. The buyer's right to insist on a reduction of price on the ground of breach of warranty cannot be made available if he has given a negotiable security for the price, not set up and the action is brought on the security. He is driven in such a case to a cross action as his only remedy. The reason is that the law does not permit an unliquidated and uncertain claim to be set up in defence against the liquidated demand represented by a bill or note. (a) fulfil the contract. Douglass Axe Manuf. Co. v. Gardner, 10 Cush. 88; McCormick v. Dunville, 36 Iowa, 645; Seigworth v. Leffel, 76 Penn. St. 476; Aultman v. Thierer, 34 Iowa, 272. In Marshall v. Perry, 67 Me. 78, the plaintiff claimed that there was a usage in Portland, where the sale was made, by which, if there was a warranty and a breach of it, the defendant was bound to return the goods within a reasonable time after receiving them, or give notice of the breach, or he would be precluded from claiming any reduction in the price on account of the breach. It was held that if there was an express warranty of quality, such an alleged usage could not be admitted to control it. See § 599 a, ante.] (x) Head v. Tattersall, L. R. 7 Ex. 7. (x1) [Dounce v. Dow, 64 N. Y. 411.] (y) Ante, §§ 703 et seq.; [Wilds v. Smith, 2 Ont. App. 8, reversing Wilds v. Smith, 41 U. C. Q. B. 136.] (z) Mondel v. Steel, 8 M. & W. 858; Street v. Blay, 2 B. & Ad. 456; Allen v. 57 tiable segiven for curity the price. Cameron, 1 C. & M. 832; [Smith v. Mayer, 3 Col. 207; Atkins v. Cobb, 56 Ga. 86; Ferguson v. Hosier, 58 Ind. 438; Defenbaugh v. Weaver, 87 Ill. 132; Dounce v. Dow, 57 N. Y. 16; Parks v. Morris Ax Co. 54 Ib. 586; Day v. Pool, 52 Ib. 416; Zuller v. Rogers, 7 Hun, 540; Nichols v. Townsend, Ib. 375; Gurney v. Atlantic Ry. Co. 58 N. Y. 358; Muller v. Eno, 14 Ib. 597. There are New York decisions which, as to defects apparent upon inspection, are inconsistent with the rule stated in the text. Dounce v. Dow, 64 N. Y. 411; Draper v. Sweet, 66 Barb. 145; Gautier v. Douglass M'n'f'g Co. 13 Hun, 514, pp. 524, 525. See McParlin v. Boynton, 71 N. Y. 604.] (a) See the exposition of the law, and citation of authorities, in Byles on Bills, 126, 9th ed.; Agra & Masterman's Bank v. Leighton, L. R. 2 Ex. 56; 36 L. J. Ex. 33; [Cripps v. Smith, 3 L. R. Ir. 277. Such is the Canadian rule. Kellogg v. Hyatt, 1 U. C. Q. B. 445; Georgian Bay Lumber Co. v. Thompson, 35 Ib. 64. But § 903. In relation to the measure of damages which the buyer Measure of is entitled to recover for breach of warranty, the rules are substantially the same as those which govern in the damages Defence of partial failure of consideration to note given for goods. it has been held in many cases in the United States, that where the goods sold appear to be of some value, and are retained by the purchaser, he may still avail himself of a fraud in the sale or a breach of warranty, by way of partial defence and to reduce the damages, in an action by the payee on a bill or note given for the price. Harrington v. Stratton, 22 Pick. 510; Perley v. Balch, 23 Ib. 283; Mixer v. Coburn, 11 Met. 561; Westcott v. Nims, 4 Cush. 215; Cook v. Castner, 9 Ib. 266; Burnett v. Smith, 4 Gray, 50; Stacy v. Kemp, 97 Mass. 166, 168; Rasberry v. Moye, 23 Miss. 320; Burton v. Stewart, 3 Wend. 236; Spalding v. Vandercook, 2 Ib. 431; Coburn v. Ware, 30 Maine, 202; Shepley J. in Hammatt v. Emerson, 27 Ib. 323, 324; Hitchcock v. Hunt, 28 Conn. 343; Albertson v. Halloway, 16 Ga. 377; Love v. Oldham, 22 Ind. 51; McKnight v. Devlin, 52 N. Y. 399, 402, and cases cited; Hill v. Southwick, 9 R. I. 299; Wilson v. King, 83 Ill. 232; Home Machine Co. v. Reber, 66 Ind. 498; Ingram v. Jordan, 55 Ga. 356; Shook v. Singer M'n'f'g. Co. 61 Ind. 520; Bryant v. Sears, 49 Iowa, 373; Fisher v. Sharpe, 5 Daly, 214. And the same defence is open to the purchaser in such case against an indorsee of the note, if it was negotiated when it was overdue and dishonored. Goodwin v. Morse, 9 Met. 278; Hammatt v. Emerson, 27 Maine, 308; McKnight v. Devlin, 52 N. Y. 399, 401. See Aldrich v. Stockwell, 9 Allen, 45. The purchaser, under these circumstances, is entitled to have so much deducted from the amount of the note as the goods, by reason of the defects in them, are worth less than they would have been if the defects had not existed; but he is not entitled, as a general rule, to a deduction of the difference between the amount of the note and the sum which the jury might deem the true value of the goods. Goodwin v. Morse, 9 Met. 278; Stiles v. White, 11 Ib. 356; Tuttle v. Brown, 4 Gray, 457; Cothers v. Keever, 4 Barr, 168; Shaw C. J. in Reggio v. Braggiotti, 7 Cush. 166, 169; Gray J. in Morse v. Hutchins, 102 Mass. 440; Wright v Roach, 57 Maine, 600; post, § 903, note (d). In New Hampshire it was held, in Drew v. Towle, 27 N. H. 412, that a partial failure of consideration New Hampmay be shown in defence to shire cases. an action on a promissory note, as be tween the original parties to it, where the amount to be deducted on that account can be ascertained by mere computation, but it is otherwise where such amount depends upon the ascertainment of unliquidated damages. In Riddle v. Gage, 37 N. H. 519, which was an action upon a note for a certain sum, given for the price of several different articles of machinery, it appeared that the title of the vendor to a part of the articles failed, so that they were taken from the purchaser, and it was held, that as there was no specific price fixed upon the different articles at the time of the purchase, but the value of those as to which the title failed was unliquidated, this partial failure of consider. ation could not be made available for the reduction of the amount to be recovered on the note. After the above decisions, the law of New Hampshire was changed by statute of 1861, and in Butler v. Northumberland, 50 N. H. 33, it was held that the purchaser of goods by sample, which, on delivery, are found to be of inferior quality to those bargained for, may keep the goods, and, in an action for the price, may show such inferiority in reduction of damages. See Burton v. Schermerhorn, 21 Vt. 289; Pulsifer v. Hotchkiss, 12 Conn. 234; Andrews v. Wheaton, 23 lb. 112; Pierce v. Cameron, 7 Rich. 114; Hodgskins v. Moulton, 100 Mass. 310, 311. In Cantrall v. Fawcett, 2 Bradwell (Ill.) 569, it was held that even where a on breach of war ranty. case of the vendor's breach of his obligation to deliver. Ante, § 871. In Dingle v. Hare, (b) cited ante, § 624, it was held that the jury had properly allowed the purchaser the difference of value between the article delivered and Dingle v. the article as warranted. And in Jones v. Just, (c) Jones v. cited ante, § 657, the same rule was applied, and the Just. plaintiff recovered as damages 7567., although by reason of a rise in the market the inferior article sold for nearly as much as the price given in the original sale. (d) In Lewis v. Peake (e) the buyer of a horse, relying second note had been given, the first having been surrendered, and there was a warranty at time of sale, it was for the jury to say whether the contract of war. ranty still remained or was adjusted when the second note was given. Aultman v. Wheeler, 49 Iowa, 647. If the note has passed into the hands of an innocent holder for value before maturity, the payment of the note to such holder does not bar the vendee's claim for damages against the vendor. Creighton v. Comstock, 27 O. St. 548.] Lewis v. on a warranty, resold Peake. Williams, 65 Ill. 390; Muller v. Eno, 4 Kernan, 597; Sherwood v. Sutton, 5 Mason, 1; Wells v. Selwood, 61 Barb. 238; Sharon v. Mosher, 17 Ib. 518; Thornton v. Thompson, 4 Grattan, 120; Moulton v. Scruton, 39 Maine, 287; Wright v. Roach, 57 Ib. 600; Bartlett v. Blanchard, 13 Gray, 429; Grose v. Hennessey, 13 Allen, 389; Brown v. Bigelow, 10 Ib. 242; Worthy v. Patterson, 20 Ala. 172; Wolcott v. Mount, 7 Vroom, 262; S. C. 9 Ib. 496; Cline v. Myers, 64 Ind. 304; Ferguson v. Hosier, 58 Ib. 438; Horn v. (b) 7 C. B. N. S. 145; 29 L. J. C. P. Buck, 48 Md. 358; Zuller v. Rogers, 7 144. (c) L. R. 3 Q. B. 197; 37 L. J. Q. B. (d) [A warranty binds the party enWhat vendor tering into it, upon breach thereof, to repay the differ must pay for breach of warranty. ence between the actual value of the article sold and that of an article such as the article sold was represented to be at the time and place of delivery. Morse v. Hutchins, 102 Mass. 439, 440; Stiles v. White, 11 Met. 356; Tuttle v. Brown, 4 Gray, 457; Reggio v. Braggiotti, 7 Cush. 166; Goodwin v. Morse, 9 Met. 278; Whitmore v. South Boston Iron Co. 2 Allen, 52; Cothers v. Keever, 4 Barr, 168; Page v. Parker, 40 N. H. 47; Fisk v. Hicks, 31 Ib. 535; Edwards v. Collson, 5 Lansing, 324; Woodward v. Thacher, 21 Vt. 580; Houghton v. Carpenter, 40 Ib. 588; Overbay v. Lighty, 27 Ind. 27; Street v. Chapman, 29 Ib. 142; Booher v. Goldsborough, 44 Ib. 490; McClure v. Hun, 540; Van Wyck v. Allen, 69 N. Y. 61; Wyeth v. Morris, 13 Hun, 338; White v. Brockway, 40 Mich. 209; Wing v. Chapman, 49 Vt. 33; The Aultman Co. v. Hetherington, 42 Wis. 622; Drake v. Sears, 8 Oreg. 209; Smith v. Green, 1 C. P. Div. 92. The rule of damages is the same in. an action for deceit in the sale. Stiles v. White, 11 Met. 356; Morse v. Hutchins, 102 Mass. 439, 440. Strictly within the rule, and a strong illustration and application of it, was the case of Murray v. Jennings, Murray v. 42 Conn. 9, in which it ap- Jennings. peared that the plaintiff exchanged with the defendant a yoke of oxen for a horse. The defendant fraudulently represented the horse as sound when it was not so. The plaintiff was guilty of no fraud, and would not have made the exchange but for the defendant's representation. The action was brought for the deceit in the (e) 7 Taunt. 153. recover the the animal with warranty, and being sued by his vendee, informed Buyer may his vendor of the action, and offered him the option of costs of de- defending it, to which offer he received no answer, and thereupon defended it himself, and failed. The common pleas held that the costs so incurred were recover fence against his sub-vendee in certain cases. sale. The evidence showed that the oxen were worth a hundred dollars; and that the horse was worth a hundred and twentyfive dollars, unsound as he was; but that, if sound, he would have been worth two hundred and twenty-five dollars. The court ruled that the plaintiff was entitled to recover the difference between the actual value of the horse and its value if sound; and that the question was not affected by the fact that its value as unsound was greater than that of the oxen. Phelps J. said: "In one sense the plaintiff would seem to have suffered no damage, but the law gives her the benefit of the contract, and places her, with respect to it and to all her rights under it, in the same position as if no fraud had been practised upon her, and as if the horse was as sound and valuable as she had a right, from the defendant's representations to her, to believe it was." The purchaser is not entitled to recover anything on the ground of the loss of profits on the warranted article. Lattin v. Davis, Hill & Denio, 9; Blanchard v. Ely, 21 Wend. 342; Gifford v. Betts, 64 N. C. 62. If the article sold proves to be wholly worthless, then the purchaser shall recover what would have been its value at the time of the warranty, had it been, in fact, what it was warranted to be. "Primâ facie, the price first paid for the article is good evidence of its value in one sense. But the value is not the same to both parties; and no merchant would make a purchase unless the goods bought were worth more to him than the amount he pays for them. In this country, the established rule in relation to damages in such actions is, that the plaintiff may recover what he can show that he has actually lost. A subsequent sale by the vendee of the article warranted is evidence of its value to him." Shaw C. J. in Reggio v. Braggiotti, 7 Cush. 166, 169. "To allow to the plaintiff only the difference between the real value of the property and the price which he was induced to pay for it, would be to make any advantage lawfully secured to the innocent purchaser in the original bargain inure to the benefit of the wrong-doer, and, in proportion as the original price was low, would afford a protection to the party who had broken, at the expense of the party who was ready to abide by, the terms of the contract." Gray J. in Morse v. Hutchins, 102 Mass. 440; Tuttle v. Brown, 4 Gray, 457. See Thornton v. Thompson, 4 Grattan, 121; Cary v. Gruman, 4 Hill, 625; Comstock v. Hutchinson, 10 Barb. 211; Glover v. Hutson, 2 McMullan, 109; Seibles v. Blackwell, 1 Ib. 56; Texada v. Camp, Walker, 150; Wright v. Roach, 57 Maine, 600; Booher v. Goldsborough, 44 Ind. 490; Thorne v. McVeagh, 75 Ill. 81. Interest is not to be added to the amount of that difference. Moulton v. Scruton, 39 Maine, 287. Where there has been a breach of warranty, nominal damages are recoverable in an action thereon, although the plaintiff, the purchaser, acquired a profit on the resale of the goods. Per Parke J. in Street v. Blay, 2 B. & Ad. 456, 458; Brown v. Bigelow, 10 Allen, 242; Medbury v. Watson, 6 Met. 246; Milton v. Rowland, 11 Ala. 732. The purchaser may recover for a breach of warranty, although he has resold the goods, and no claim has been made on him, and he is liable to none on account of the alleged defect; and in such an action he is not required to prove the price at which he resold the goods to entitle him to recover. Muller v. Eno, 4 Kernan, 597. See Burt v. Dewey, 40 N. Y. 283.] Nominal damages where no real injury. Randall v. Raper. recover damages liable to pay to sub able as special damages against the first vendor. (ƒ) In Randall v. Raper (g) the plaintiffs had bought barley from the defendant as Chevalier seed barley, and in their trade as corn factors resold it with a warranty that it was such seed barley. The sub-vendees sowed the seed, and the produce was barley of a different and inferior kind, whereupon they made claim upon the plaintiffs for com- vendees. pensation, which the plaintiffs had agreed to satisfy, but no par-, ticular sum was fixed, and nothing had yet been paid by the plaintiffs. The difference in the value of the barley sold by the defendant, and the barley as described, was 157., but the plaintiffs recovered 2617. 78. 6d., the excess being for such damages as the plaintiffs were deemed by the jury liable to pay to their sub-vendees. All the judges of the queen's bench held the damages to the sub-vendees to be the necessary and immediate consequence of the defendant's breach of contract, and properly recoverable. (g1) Wightman J., however, expressed a doubt whether these damages were recoverable before the plaintiffs had actually paid the claims of their sub-vendees, but declined to dissent from his brethren on the point. (h) aggravated by fraudu representa § 904. The damages recoverable by the buyer for a breach of warranty may be greatly augmented when they are the Damages consequence of a fraudulent misrepresentation by the vendor. Thus, in Mullett v. Mason, (i) the plaintiff, having placed with other cattle a cow bought from the defendant, which was fraudulently warranted to be sound, although known by the vendor to be affected with an infectious disease, was held entitled to recover as damages the (f) [That is, the taxable costs. Reggio v. Braggiotti, 7 Cush. 166; Coolidge v. Brigham, 5 Met. 68. But the plaintiff, in such case, cannot recover counsel fees paid for his defence. Reggio v. Braggiotti, 7 Cush. 166; Leffingwell v. Elliott, 10 Pick. 204. But see Swett v. Patrick, 3 Fairf 9; and see, also, Fuentis v. Caballero, 1 La. An. 27. In general, a vendor, on an implied warranty of title, would not be liable to the purchaser on failure of title, for costs of a previous defence, unless the defence was made for his benefit and at his expense. Shaw C. J. in Bucknam v. Goddard, 21 Pick. 70, 71. See Eldridge lent mistion by vendor. Mullett v. Mason. v. Wadleigh, 3 Fairf. 372, 373; Cockerell v. Smith, 1 La. An. 1. As to the expenses incurred in consequence of the unsoundness, as of an animal, see Murray v. Meredith, 25 Ark. 164.] (9) E., B. & E. 84; 27 L. J. Q. B. 266. (gl) [Wolcott v. Mount, 38 N. J. Law (9 Vroom), 496.] (h) [Burt v. Dewey, 40 N. Y. 283; Wolcott v. Mount, 7 Vroom, 262, 272, 273.] (i) L. R. 1 C. P. 559; [Packard v. Slack, 32 Vt. 9; Cate v. Cate, 50 N. H. 146; Fultz v. Wycoff, 25 Ind. 321; Jeffrey v. Bigelow, 13 Wend. 518.] |