10 Ala. 933 | Ala. | 1847
Lead Opinion
It is a general rule of law respecting the measure of damages, that where an injury has been sustained for which the law gives a remedy, that remedy shall be commensurate with the injury sustained. [4 Dall. Rep. 206; 7 Mass. Rep. 254; 16 Pick. Rep. 194.] In an action upon a covenant of warranty contained in a deed conveying land, the measure of damages, in most of the States of the Union, is the consideration money, or the proper proportion of it,
In Hogan v. Thorington, 8 Porter, 428, which was an action for falsely warranting a slave to be sound, we said both reason and authority would seem to graduate the plaintiff’s recovery by the inj ury he has suffered in consequence of the false warranty. That a plaintiff in general is entitled to recover for all losses resulting directly from a breach of the warranty; so that in some cases he may recover even beyond the price he has paid for the thing warranted. “ Thus ¿he purchaser of a slave warranted sound, who has proved entirely valueless, is entitled to be reimbursed, not only the purchase money, but all proper expenditures for medical aid,” &c. To the same effect is Kornegay v. White, at the last term, in which it was held, that it was not only allowable to compensate the ven-dee for expenditures for medicines and the services of a physician, but also to calculate “interest upon the sum which the plaintiff had been induced to pay more than he should by the false warranty.”
To enable the vendee to bring an action for the breach of an express warranty, it is not essential to tender a return of the goods; and where there has been no offer to return, the measure of damages is merely the difference between the sum given and the real value. [1 H. Bla. Rep. 17 ; 2 T. Rep. 745; 1 Taunt. Rep. 566; 3 Stark. Rep. 32; see also, 2 Chit. R. 416; 7 Taunt. Rep. 153; 4 Phil. Ev. 105-6, and cases there cited; also, note 306, p. 196 ; 3 Stark. Ev. 1666,1667.] It is said, the plaintiff is in general entitled to recover in respect of all losses which may have resulted from the breach of warranty. Accordingly, in an action upon a warranty of chain cable, it was held that the plaintiff might recover the value of an anchor which was lost through the insufficiency of the cable, proof being adduced that the ship would have been lost if the cable had not been slipped. [8 Taunt R. 535; 2 Moore’s R. 582.]
The law is thus laid down by Starkie, in his Treatise on Evidence, (3 vol. 1666.) “If a warranted horse has been returned, the measure of damages is the price paid. If he
If by the value of the goods we are to understand, what they would have been worth to the purchaser, if they had been such as the warranty affirmed them to be, without regard to the price paid for them, then I unhesitatingly say, that neither of the learned authors from whom we have quoted, are sustained by the authorities they respectively cite. I have carefully examined the citations made by Greenleaf and Saunders, and in none of the cases did the damages exceed the price paid, unless they were increased by the addition of interest, a charge for keeping ahorse, costs and damages in some other action, to which the vendor was liable as a consequence of a false warranty, or some other kindred cause. The inquiry was not as to what would have been the value of the property, if sound, but the court proceeded upon the idea, that the price paid, indicated the value ; and I am constrained to conclude, that price paid, and value, are frequently used as synonymous.
In Lewis v. Peake, 7 Taunt. R. 153, it was held, that where A sells a horse to B, with a warranty of soundness, and B to G with a like warranty — C recovers the price of the horse upon the ground of his unsoundness, in an action a
The measure of damages, in an'action brought for a.breach of an implied warranty of title, in the sale of a horse is the price paid, interest thereon, and the costs recovered against the purchaser or his vendee, in case of a suit by the owner, and notice to the vendor. [5 Wend. Rep. 535; see 1 John. Rep. 517.]
Williamson v. Canaday, 3 Ired. Rep. 349, does not determine that where a slave warranted sound, is diseased, and wholly valueless, the measure of the vendee’s is damages the value of the slave had he been sound, irrespective of the price paid. That was an action for a breach of warranty, that a slave was sound at the time of his sale to the plaintiff, who at that time had actually taken the infection of the small pox, and soon afterwards died of that disease. The supreme court of North Carolina, held that it was not error in the judge at the circuit to tell the jury that they might take the price given for the slave as the measure of the damages — ■ there being no objection taken to this instruction on the trial —the slave having been a total loss to the plaintiff, and the price, without any evidence to the contrary, being considered the market value of the slave. What is here said cannot, in my judgment, be dignified even asa dictum, that the “market value,” if there had been proof of it, would furnish the criterion of damages.
A syllabus of Ferris v. Barlow, et al. 2 Aik. Rep. 106, is thus stated in Washburn’s Dig. “as a general rule of damages in case of a breach of contract, the law requires the defendant to make the plaintiff whole, that is, to place him in as good a situation as he would have been had the defendant performed his contract. The amount of consideration paid is not the rule.” I have not had access to the report of this case, but I am quite sure that the action was not brought to recover damages for a breach of warranty. I imagine when examined, it will be found to be the case of an execu-tory contract, perhaps for the delivery of goods ; in such a
Coolidge v. Brigham, 1 Metc. 547, was doubtless decided upon a correct principle. That was an action on a warranty that the indorsements on a note of a third person, which was transferred hy the defendant to the plaintiff, were genuine. It was held that the measure of damages was the difference between the amount of the note and its actual value. If the defendant had guarantied the note, he would have been charged with its amount, but as the damage resulting from the breach of warranty of genuineness only went to the extent of its depreciation, in consequence of the indorsements not being genuine, the plaintiff could recover nothing more. I confess I cannot very well perceive the pertinency of this case to the point in hand, and only notice it because it has been brought to our view.
Cox v. Walker, 6 Ad. & E. Rep. 519, note (a,) was an action for the breach of warranty of a horse sold as sound; and the special damage alledged. in the declaration was the plaintiff’s expense incurred by reason of the warranty, and his loss of gains and profits in re-selling the horse. The plea denied, the unsoundness. It appeared that the plaintiff bought the horse of the defendant for £100, and had been offered £ 140 for him; hut the horse proving unsound, the plaintiff was obliged to give up the bargain and sell him for £49 7s. Lord Denman, C. J., directed the jury, that the plaintiff was entitled to recover the difference between the price at which he had sold, and the actual value of the horse if he had been sound at the time of such sale; and he left to the consideration of the jury as a measure of the value, the price offered for the horse while in the plaintiff’s hands. The jury found for the plaintiff, £90 13s. damages. A rule was obtained for a new trial, on the ground of misdirection, or for a reduction of damages, and cause was shown before the
I will not extend this opinion, which has been already drawn to a length beyond what I could have wished, by additional citations. We have seen that a different measure of damages is applied in respect to the breach of a contract to deliver property at a future day, than where the contract has been executed, and the vendee sues upon an allegation that the property was not such, as the vendor warranted it to be. In the former, the plaintiff’s damages are grauduated by the injury he sustained by the failure to deliver; and consequently, the value on the day appointed for that purpose, must under ordinary circumstances be a ruling criterion. This rule, as it will be seen by some of the cases cited, has been applied not only where personal estate is the subject of contract, but where the vendor has undertaken to convey lands.
Where lands have been sold with a warranty of title, if the vendee is evicted, the measure of damages in an action upon the covenant of warranty, ordinarily is, (as we have seen,) the consideration money, or the proper proportion of it with interest. Such is the rule in this State, and I can conceive of no sufficient reason, resting upon principle or' authority, for maintaining that the vendor upon a false warranty of soundness of personal property, should be charged with the value of the thing rather than the price received by him. If sound property was worth more than the purchase money,
The only safe rule then, in my judgment, is to consider the price paid as conclusive of the question of value, in an action upon the warranty of soundness — as the agreed value, not subject to modification by proof. Such a decision best comports with legal analogies, and will carry out the general understanding as to the law on this point, without allowing the vendor or vendee to speculate upon each other. Besides, we all know that slaves are frequently sold at a price below their market value, for the purpose of procuring for them a master of their own selection, or one who will certainly treat them with kindness, and retain them in his family. It would be exceedingly unjust in such cases, to charge the humane and honest vendor with damages beyond the price received by him ; yet such will be the consequence of sustaining the judgment of the circuit court.
In respect to land, where there is a breach of the warranty of title, the consideration is the criterion of value. Upon the return of an article of personal property on the ground that it is not of the quality stipulated, the vendee only recovers the price paid, with perhaps interest, and such other special damages as he may alledge and prove. If it is of any value, and has not been returned, the vendee’s recovery will be admeasured by the difference between the value of the article as it was, and the price paid for it, with such other legitimate items of special damage as results from the breach of warranty. How, consistently with this last proposition, the price paid- may be disregarded where the article is valueless, is what I cannot very well perceive. Suppose in the present case, the slave had been worth one hundred dollars, then the plaintiff would have recovered five hundred dollars, with physician’s bill, &c.; but being of no value, he is allowed to rc-
It is the general assertion of the text-writers, that a plaintiff suing for a breach of warranty, is entitled to recover as damages, the difference in value between the thing as it is warranted to be, and as it actually is, at the time of the warranty. [Steph. N. P. 1301; Chit, on Con. 137; Story on Con. § 551; 2Greenl. E. § 262.j It does not appear, however, that this rule has yet been settled, of at least we have found no case in which it is made the turning point for-decision. If they are reported aright, Lord Eldon, in Carlos v. Harvey, 3 Esp. 82, and Sir James Mansfield, in Caswell v. Coan, 1 Taunt. 566, have both asserted the rule, and Lord Denman, in Cox v. Walker, 6 A. & E. 523, is reported to have gone to the extent of ruling, that an offer to purchase the article at an advanced price, made by a stranger, was a matter to go to the jury, as a means by which to estimate the value of the article in a sound condition. This, as a proper measure of damages seems to have been doubted in Chase v. Maynard, 6 A. & E. 519, but we do not understand the court as denying the rule that this difference in the value of the thing as warranted, and as it actually is, to be the true measure of damages. In all the cases of this nature, where the ¡article warranted has been subsequently sold, the price ob
Upon the whole, a majority of the court is satisfied, the law was correctly expounded to the jury, in the charge of the circuit court.
Judgment affirmed.
Concurrence Opinion
I concur in the opinion of my brother Goldthwaite.