41 Vt. 631 | Vt. | 1869
The opinion-of the court was delivered by
This is an action on the case, declaring in several counts for false warranty of certain sheep. The first question presented is whether the plaintiff, at the time of the trade, had such knowledge of the unsoundness complained of as to render an express warranty inoperative. The case shows that the parties, on the first day, settled the terms of a valid executory agreement; and the plaintiff’s testimony tends to prove that, as part of that agreement, the defendant warranted the sheep sound and free from footrot, and that the plaintiff entered into the agreement relying upon said warranty. On the second day the plaintiff went to the defendant’s to pay for the sheep as agreed, when he discovered they were unsound, and believed they had the footrot. He then offered to rescind the trade, requested the •defendant to repay the $100, and keep the sheep, which the defendant refused to do. The defendant then repeated (as the tes
II. On the subject of damages we think the charge of the court can not be sustained. It first states the general rule of damages applicable to breach of warranty,, and then concludes with instructions which would allow the jury to assess damages, resulting not only too remotely from the original unsoundness, (if resulting at all from that cause,) but also not recoverable under the declaration. The general rule, as to the grounds on which damages may be recovered for the breach of an express warranty, is not sufficiently definite for the guidance of the jury, but they should also be instructed as to what evidence tends to show the difference in value between the property sound and unsound, and what recoverable expenses have been seasonably, properly, and reasonably incurred, for doctoring and taking care of the sheep, in consequence of the unsoundness existing at the time of the sale. Each count of the declaration, relating to the footrot, contains sufficient allegations to sustain a recovery for the difference in value between the property sound and unsound, by reason of that disease. The second count contains the following allegations, viz.“ And the plaintiff avers that in consequence of being so-diseased, the said sheep were lame, and the plaintiff was put to-great expense and trouble in feeding, taking care of and endeavoring to cure the sheep so bought of the defendant.” This is the only averment of special damage, except that relating to the infe
The first ground or item of recovery relates to the difference between the value which the property would have had at the time of the sale and ¡dace of delivery in this state if it had been sound, or corresponding to the warranty, and its value with the defect; or in other words, the difference between the value of the sheep somid and unsound, the unsoundnoss being caused by the footrot. Is the footrot a curable disease ? What length of time would be required to cure it ? What would be the probable expense of curing the disease, including the expense for doctoring and keeping rendered necessary in consequence of the defect ? Would the sheep be worth as much when cured as if they had not the foot-rot at the time of the sale; if not, how and to what extent would their value be lessened in consequence of having had the disease, that season of the year, so long only as would be required to effect its cure ? What other injury, besides the expenses for doctoring and keeping the sheep, would follow as a direct consequence of the defendant’s breach of warranty ? Would the disease re
Would a prudent man, knowing that a lot of sheep were affected by the footrot, knowing it could be cured, and having paid .such a price for them, take them to market before making a suitable effort to cure the disease ? However that may be, we think that the plaintiff, knowing as he did that the sheep were thus diseased and understanding it could be cured, should not be allowed to enhance the damages against the defendant, by his wandering with the sheep from place to place and from market to market, in the manner stated by him in his testimony. He ought to have known that such management of the sheep, and effort to market them while so diseased, would result in great loss. The vendor of property, sold with warranty against a specified defect, is liable for such damages as are the direct consequence of that defect;
III. From the views above expressed as to the rule of damages, it follows that so much of the testimony objected to, as relates to items not recoverable, should have been excluded. It is also objected by the defendant that the plaintiff was improperly allowed to testify from or refer to a certain memorandum produced by him on trial. It is obvious that a memorandum made from recollection merely, and so long after the alleged transaction to which it refers, would not be likely to aid the recollection of .the witness, or add to the weight of his testimony. If the court allowed the paper as evidence generally to refresh the recollection of the witness, we think it was wrong. But as a paper containing dates, figures and amounts within the recollection of the witness, but ■being matters which he could not carry in his mind, it might be referred to by him, not for the purpose of refreshing his recollection as to the correctness of the entries, but for the purpose of enabling him to state with accuracy the details of things of which he had from recollection made a memoradum, but could not carry them in his mind so as to be able to repeat them without the aid of the paper.
Judgment of the county court reversed and case remanded.