113 Ark. 169 | Ark. | 1914
(after stating the facts). Counsel for appellant seeks to reverse the judgment on the ground that the court erred in directing a verdict in favor of defendant ; and in this connection we think he is correct. At the time the plaintiff purchased the ear of corn involved in this suit, he had no opportunity to inspect the same, and there was an implied warranty on the part of the seller that the corn was reasonably fit for use. Truschel v. Dean, 77 Ark. 546; Bunch v. Weil, 72 Ark. 343. According to the testimony of the plaintiff, the corn had sprouted and was rotten and unfit for use. - The plaintiff paid for the corn and received it. Where the goods delivered to the buyer are inferior in quality to that which was warranted by the vendor, .and the buyer accep'ts the goods and pays the purchase price thereof, he may bring an action for breach of warranty. Benjamin on Sales, (7 ed.), § 893; Mechem on Sales, Vol. 2, § § 1807-1809-1810; Yellow Jacket Mining Company v. Tegarden, 1Q4 Ark. 573; Warden v. Middleton, 110 Ark. 215, 161 S. W. (Ark.) 151. It is' true the defendants adduced evidence tending to show that they offered to take back the car of corn and to pay back to the plaintiff the amount he had paid for the same. This offer, however, was not made until February 11,1913: The present suit was instituted on February 6, 1913. Thus, it will be seen that plaintiff instituted the action before the tender was made to him. He exercised his option to receive the goods and pay for them and sue the defendant for a breach of warranty. After he had done this the defendants could not defeat his right of recovery by offering to receive back the goods and return him the purchase money.
For the benefit of the parties on a retrial of the ease, we will determine the question of the measure of damages. .Mr. Mechera says: “Where the article furnished •by the seller is not snch in kind, quality or condition as it was expressly or impliedly warranted to be, the direct and natural loss to the buyer who keeps it is obviously the difference between the value of an article of the kind he was thus entitled to receive and the value of the article which he has in fact received. For this loss he is entitled to compensation. There may, of course, be other losses resulting from the seller’s default, and these will be considered later; but the direct and immediate loss will be at least this difference in value. For the breach of warranty, then, as to kind, quality or condition, the measure of the buyer’s injury will be the difference between the value of an article of the kind warranted and the value of the kind actually delivered; and for this difference the buyer may recover damages.” Mechem on Sales, Vol. 2, § 1817.
For the error in directing a verdict in favor of the defendant, the judgment will be reversed and the cause remanded for a new trial.