34 Mo. 255 | Mo. | 1863
delivered the opinion of the court.
This was an action by Johnson against Blanks, executor of Meyers, to recover damages for the breach of an express-warranty of title to an infant slave, which was sold by Meyers to Johnson in 1855, and was afterwards, in 1859, recovered from the latter in an action brought against him for the purpose by one Mary Lewis, who- claimed by title paramount to that of Meyers, of which action Blanks, the executor, had notice. The evidence tended to show that Mary Lewis acquired her title by moans of a deed of gift from said Meyers, her grandfather ; and that at the time of the plaintiff’s purchase he had knowledge of the previous gift, but that it was then in good faith believed, both by Johnson and Meyers, that by reason of an arrangement which had been made between Myers and the father of Miss Lewis, then an infant, that her title had become extinguished and re-invested in Meyers. The evidence also showed that the slave, by reason of its immaturity, was incapable of service, and was a burden and expense upon Johnson from the time of the purchase until he was .dispossessed by the claimant under the paramount title.
The only point made in the case which we will consider, is as to the measure of damages. The court instructed the jury that the measure of damages was the value of the slave at the time of the sale, together with Johnson’s costs and expenses in caring for the slave, and in defence of the suit of Miss Lewis, and refused to instruct that if the plaintiff purchased with notice of the previous gift to Miss Lewis, the measure of damages was alone the value of the negro, with interest. We do not think the fact of notice to the respondent can have the effect of restricting the measure of his recovery as contemplated by the refused instructions. It is a fundamental rule of damages, that the damages claimed
In cases of warranty of soundness, the authorities teach that where A sells goods with warranty to B and B re-sells with a similar warranty to C, who sues and recovers against B for breach of his warranty ; if A advised or sanctioned the •defence being set up, B .may recover of A the costs he paid to C in the former action, as well as his own costs in defending the suit; and, in such case, a jury is warranted in finding, that A sanctioned the defence, if, being notified of the suit, he make no objection to the defence. (Mayne on Damages, 29, 30; Armstrong v. Percy, 5 Wend. 535.)
In .analogy to cases of this sort, we think the costs incurred by the respondent in defence of the suit of Lewis are the subject of recovery in the present action. (Baldwin’s Administrator v. Shelton, 25 Ala. 217.)
It is also well settled that in cases of warranty of soundness, the vendor is answerable to the vendee for care and attention and for medical attendance and medicines, if, on discovery of the unsoundness, the vendee has given notice to the vendor of the unsoundness and offered to rescind. The purpose of the notice in such cases is to enable the vendor, if
Another question raised by a motion to instruct the jury, and overruled by the court below, and pressed in the argument by the appellant’s counsel in this court, is as to whether the respondent’s cause of action is not barred by reason of the suit not having been commenced within three years next after notice of the grant of administration on Myers’ estate. This defence was set up in the answer, but was stricken out, on the motion of the appellant, in the court below ; and no exception having been taken to the action of the court in striking the same out, there was no issue in the case upon which the question could arise, and we therefore cannot consider it.
Let the judgment be affirmed ;
