CLARA E. PERKINS vs. M. D. MERRILL and wife. May 25, 1887. Complaint held sufficient to show plaintiff's title to the note sued on. Appeal by defendants from an order of the district court for Ramsey county, Simons, J., presiding, overruling a demurrer to the complaint. After alleging the making of a note by the defendants payable to the order of Phoebe S. Cushing, the complaint alleges "that said Phoebe S. Cushing is dead; that she died on the 18th day of April, 1883; that said note was set over and assigned to said plaintiff, Clara E. Perkins, by the executor of said Phoebe S. Cushing's estate, on the 4th day of October, 1883; that said Clara E. Perkins is now the owner and holder of said note as heir of said Phoebe S. Cushing." The complaint also shows that the note is past due and unpaid. Leavitt K. Merrill and Francis E. Baker, for appellants. I. W. Arnold, for respondent. VANDERBURGH, J. The defendant interposes a general demurrer to the complaint, on the ground that it fails to show plaintiff's ownership of the note sued on. The note is payable to the order of Phoebe S. Cushing, and the complaint sets up the fact of her death, and that the note was subsequently transferred and assigned by her executor to the plaintiff, and that the plaintiff holds and owns the note as her heir. The substance and meaning of the allegations apparently are that the plaintiff has acquired title to the note as a distributee of the estate of the deceased, through her executor. Where the objection is that the plaintiff has no legal capacity to sue, more particularity is required in setting out the facts showing the appointment of an executor or administrator. Bliss, Code Pl. § 408; Chamberlain v. Tiner, 31 Minn. 371, (18 N. W. Rep. 97.) But such is not the objection here, and we are inclined to the opinion that, under the liberal practice of the courts as respects allegations of title, when the defendant resorts to a demurrer for insufficiency, instead of a special motion to correct the pleading, the complaint may be held sufficient; that is, it shows title, though loosely. Soule v. Thelander, 31 Minn. 227, (17 The complaint is not to be commended, but the defendant can 37 41 A. N. MERRICK and another vs. EDWARD WILTSE and another. May 25, 1887. Sale Warranty-Damages.-The general rule is that, upon a breach of a simple warranty upon the sale of a chattel, the measure of damages is the difference between the value of the property as it is represented and warranted and its actual value, with interest. Same-Expenses. In the case of a breach of warranty of a horse, no fraud appearing, subsequent expenses incurred by the vendee for medical examination or treatment held not recoverable as special damages, in addition to the general damages allowed under the rule stated. Appeal by defendants from an order of the municipal court of Minneapolis, refusing a new trial. Russell, Emery & Reed, for appellants. L. R. Thian, for respondents. Vanderburgh, J. Action for damages for breach of warranty of a horse. The court finds that the defendant warranted the horse to be perfectly kind and sound in every respect, and suitable for driving in the city of Minneapolis, but that, at the time of the sale, there existed some imperfection or unsoundness in his forefeet, by reason of which he was unfit for driving in the city, and which depreciated his market value in the sum of $75, which, with $23 expenses, was allowed as damages. The court also finds that, as soon as plaintiff commenced using the horse on the streets of this city, he became 71 486 lame, and has continued so, and that plaintiff necessarily expended in doctoring and endeavoring to ascertain the nature and cause of the lameness the sum of $23. The allowance of this last item is assigned for error. The general rule is that the measure of damages upon a breach of warranty is the difference between the value of the property as represented and as it is found to be. The sum of $75, as found by the court, was therefore the proper measure of damages, unless there were special circumstances authorizing the trial court to allow extra or additional damages, and we do not think that such special circumstances are shown in this case. Freeman v. Clute, 3 Barb. 424; Wilson v. Reedy, 32 Minn. 256, (20 N. W. Rep. 153;) Osborne v. Poket, 33 Minn. 10, (21 N. W. Rep. 752.) Under the rule as established in this state, the vendee cannot re-scind and return the property for a breach of warranty merely, there being no fraud. Minneapolis Harvester Works v. Bonnallie, 29 Minn. 373, (13 N. W. Rep. 149.) The title to the property passes, and, if the warranty is false, a cause of action accrues immediately, and compensation in damages is due at once. Muller v. Eno, 14 N. Y. 597, 605. If the animal did not prove to be reasonably fit for present use by reason of the defects complained of, there was, of course, a breach of the contract of warranty, (2 Schouler, Pers. Prop. § 339,) and this plaintiff was entitled to his damages measured by the rule stated; but his subsequent expenses for medical treatment or examination must be deemed to have been incurred for his own benefit. He was enabled thereby to obtain evidence of the nature of the defect, or the extent of the unsoundness, and perhaps improve the condition of his own property. We do not think that these expenses can be fairly considered as additional damages, naturally resulting from the breach of the contract, or reasonably within the contemplation of the partiesmaking it. In the case of Johnston Harvester Co. v. Clark, 31 Minn. 165, (17 N. W. Rep. 111,) evidence of the cost of repairing a machine was held competent, as tending to prove the nature and extent of the damages within the rule, but not in addition thereto. The distinction between the case of a simple warranty and cases characterized by fraud, malice, or gross carelessness, or the case of an executory contract of sale, where the buyer may return the property in certain contingencies, need not be considered. Sharon v. Mosher, 17 Barb. 518. We are aware that the courts in some of the states have adopted a broader rule, but the current of authority is as we have indicated. 1 Smith, Lead. Cas. (8th Ed.) 366. The item of $23 was therefore erroneously included in the order for judgment, and the case will be remanded, with directions to render judgment for the plaintiffs for the sum of $75, and interest. HENRY C. JAMES vs. ANTON JORDAN and wife. May 25, 1887. Trial by Court-Review of Findings of Fact.-In a case tried by the court without a jury, findings of fact upon oral testimony will not be disturbed by this court on appeal, where there is evidence reasonably tending to support the same. The plaintiff brought this action in the district court for Ramsey county, to recover half of the profits made upon the purchase and resale of certain real estate, it being alleged in the complaint that the plaintiff and the defendants entered into an agreement to purchase the land in question, the title to be taken in the name of the defendant Anton Jordan, the plaintiff and the defendants each to furnish one-half of the necessary money, and each to have one-half of the profits, and that the real estate was purchased and resold in pursuance of the agreement at a large profit for which the defendants refuse to account to the plaintiff. The answer admits that the defendant Anton Jordan purchased and resold the real estate at a profit, (stating the amount,) but denies that the purchase and sale were made under any agreement with the plaintiff, or that he was interested therein. The action was tried without a jury before Brill, J., who found that the defendant Anton Jordan and the plaintiff made the agreement alleged in the complaint, and that the purchase and resale were made in pursuance of it, and ordered judgment for plain tiff. Defendant Anton Jordan appeals from an order refusing a new trial. The third assignment of error referred to in the opinion is that "said court below rendered judgment against the appellant and in . favor of the respondent, whereas, by the laws of the land, judgment should have been rendered in favor of the appellant and against the respondent." John B. & W. H. Sanborn, for appellant. John F. Fitzpatrick, for respondent. VANDERBURGH, J. Under the assignment of error, there is substantially but one question to be considered in this case, and that is as to the sufficiency of the evidence to support the findings of fact by the trial court, that plaintiff and defendant Anton Jordan made an agreement whereby it was mutually agreed by them that they would purchase the real estate described in the complaint, and take the title thereto in the name of Jordan; that each should furnish half the money necessary therefor; that the property should be sold as soon as satisfactory to the parties, and the profits divided equally between them. It is also found by the court that the plaintiff had been previously negotiating for the purchase of the property in question on behalf of himself and defendant, but without disclosing his own name, and had received a proposition for the sale thereof by the owner; and in pursuance thereof a contract for the sale of the premises to defendant was completed. 1. The case was tried before the court without a jury, and the question as respects the nature of the agreement determined, upon oral evidence produced by the parties before the court. In such cases this court will not disturb the finding of the trial court upon questions of fact where there is evidence reasonably tending to support it. Martin v. Brown, 4 Minn. 201, (282;) Knoblauch v. Kronschnabel, 18 Minn. 272, (300.) 2. It would serve no useful purpose to review the evidence in detail in this opinion, but, from a careful examination, we are satisfied that there is sufficient evidence to make out plaintiff's case, and to sustain the findings of the court as made. The evidence in plaintiff's behalf tended to prove that the alleged agreement was the result of |