64 Mo. App. 159 | Mo. Ct. App. | 1895
This is an action to recover the purchase money of a jack. The jury returned a verdict for plaintiff for $843.48, and judgment was entered for that amount. The petition alleges a breach Of warranty in the sale of the animal, and a rescission of the contract on account of it. The defendant has appealed and, among other things, complains of the plaintiff’s instructions.
In the case at bar the plaintiff purchased the jack from the defendant, and paid the latter $900 for it. He bought the animal for a breeder, and his claim is that the defendant expressly warranted it to be suitable in every resápect for that purpose, and that, after trial, it failed in every particular to fill the terms of the warranty. As heretofore stated, the action is for the purchase money (and certain expenses) and was based on an alleged rescission of the contract, the petition alleging the breach of the warranty and the return of the animal within a reasonable time thereafter. The case as pleaded was substantially made out by the plaintiff’s evidence, but the rule for the admeasurement of damages, as stated in his instruction, was the difference between the marketable value of the jack as warranted and his value as he actually was. This, as we have shown, was error. If this were the only error, we might affirm the judgment for the reason that the defendant was not prejudiced, the amount of the verdict being less than the amount which the plaintiff claimed that he paid for the jack, not including the expenses. But the plain
With the concurrence of the other judges, the judgment of the Hannibal court of common pleas will be reversed and the cause remanded. It is so ordered.