51

55

agreed to be delivered; " or the difference between the value of the article received and that contracted for; or between the value of the article delivered and that which should have been delivered rather than upon the cost of repair or reconstruction, as in case of sale of a pipe for a pipe line.

58

59

60

57

§ 1688. Same subject continued-Market value or price. -The measure of damages where goods are sold with a warranty, or upon misrepresentations as to quality, etc., has also been declared to be the difference between the market value of the articles contracted for and of those delivered; 5 or between the contract price and the market value at the time and place of delivery; or between the price agreed upon and the value of the property sold; or between the value of the property as it actually was and the price paid for it; or between the market value of the property delivered at the various dates of delivery and the market value at the same dates of property of the quality required by the contract; or the difference between the price paid before discovering the fraud and the market value; or between the contract price and the actual market value of the article in the imperfect condition it was when delivered; 63 or between the sum paid and the value of the property where an entire stock of a corporation is sold and there is a misrepresentation as to the property; 64 or the price at the place of delivery, even though the vendor knew the merchandise was destined for another and a higher market; or the

4 Joseph v. Richardson, 2 Super. Ct. (Pa.) 208; 23 W. N. C. 487; 27 Pitts. L. J. N. S. 138.

55 Miller v. Greenleaf (Tex. App.), 18 S. W. 89.

56 Crane Co. v. Columbus Const. Co., 46 U. S. App. 52; 20 C. C. A. 233; 73 Fed. 984.

57 Ogden v. Beatty, 137 Pa. 197; 47 Phila. Leg. Int. 516; 26 W. N. C. 524; 20 Atl. 620. See Wheelock v. Berkley, 138 Ill. 183; 27 N. E. 942; Aultman v. Ginn, 1 N. D. 402; 48 N. W. 336.

58 Atlas Furniture Co. v. F. S. Higgins Carpet Co., 71 Ill. App. 17; 2 Chic. L. J. Wkly. 542.

61

65

59 McAlpin v. Lee, 12 Conn. 129; Hunt v. Van Deusen, 19 N. Y. St. R. 824; 3 N. Y. Supp. 75.

60 Merkley v. Phillips (Ky. 1899), 53 S. W. 1037.

61 St. Anthony Lumber Co. v. Bardwell Robinson Co., 60 Minn. 199; 62 N. W. 274.

62 Hambrick v. Wilkins, 65 Miss 18; 3 So. 67; 7 Am. St. Rep. 631. 63 Miles v. Withers, 76 Mo. App. 87; 1 Mo. App. Rep. 453.

64 Zieley v. Palliser, 62 N. Y. St. R. 62; 30 N. Y. Supp. 287.

65 Latton v. Davis, Hill & D. (N. Y.) 9.

66

difference in the market value of the goods actually delivered and the goods contracted for where the quality is not that which was warranted; or the difference between the price paid and the worth of the article at the time of delivery, with its defects and vices; 67 or the diminution caused in the market price at the time of delivery where one is induced by false representations to purchase goods to be delivered. But it is also decided that the difference between the contract price and the actual market price of the warranted goods as delivered is not the true measure of damages.

§ 1689. Market value-Special instances.-In case of goods sold by sample and there is a question whether the sample was of perfect goods, the defendant's claim that it was imperfect is not binding, and evidence of the market value of perfect goods of the kind called for is admissible in an action for breach of contract to deliver. The measure of damages in an action for deceit in obtaining from plaintiff a stock of furniture and his notes secured by mortgage on lots in exchange for certain lots, where the notes were paid by his grantee of the lots, and he incurs no liability to the latter, is the difference between the value of the lots and that of the furniture as it was sold at wholesale. And the measure of damages for false representation by a seller, inducing a purchase of goods, for the purchase price of which he has recovered a judgment with interest from maturity, against the buyer, is the amount of such judgment less attorney's fees and costs, and less the market value of the goods received and retained, together with interest to the time of trial. So in an action to recover an amount paid in excess

66 Florida Athletic Club v. Hope | Mitchell Mfg. Co. v. T. G. Northwall Lumber Co., 18 Tex. Civ. App. 161; Co. (Neb. 1902), 91 N. W. 863; Bank 44 S. W. 10; Tripis v. Gamble (Tex. of North Collins v. Cary Safe Co., 42 Civ. App. 1895), 28 S. W. 244; Cooper App. Div. 283; 59 N. Y. Supp. 643; v. Webb (Tex. Civ. App. 1894), 25 S. Davenport v. Anderson (Tex. Civ. W. 151. App.), 28 S. W. 923.

67 Wurtz v. Morrison, 17 Tex. 372. 68 Cooper v. Schlesinger, 111 U. S. 148. See Moline Plow Co. v. Carson, 72 Fed. 392.

69 Hodgman v. State Line & S. R. Co., 45 Ill. App. 395. See Punteney

70 Eiserman v. Heine, 2 App. Div. 319; 73 N. Y. St. R. 74; 37 N. Y. Supp. 861.

71 Fixen v. Blake, 47 Minn. 540; 50 N. W. 612.

72 McCord-Collins Commerce Co.

73

of value of goods sold to a lunatic on the ground of fraud and imposition of the seller, the amount recoverable is the amount found to have been paid the latter in excess of the value of the goods and not the difference between the amount paid and the amount actually realized from sales of the goods by the purchaser and his guardian. So where plaintiff, a manufacturer, was induced to sell his goods on credit to an insolvent corporation, relying on the false statements of defendant that it was solvent, in computing plaintiff's damages the goods should be figured at the market price, though that included the usual manufacturer's profits." And where there is deceit in regard to ore sold but accepted by the purchaser after knowledge of the fraud, the difference between the contract price and the value of the ore in the market at the time, unaffected by such false representation, is the compensation recoverable and not the actual value to the purchaser of such ore. Again, the sales at Amsterdam of teas shipped at Canton, under a contract that they should be prime teas, compared with sales of similar teas there, furnish the rate of loss which, in ascertaining the damages sustained by the breach of a contract, is to be applied to the cost of the teas so shipped at Canton; but those sales do not furnish the amount of the damages. But where there is no evidence as to the value of the property warranted, except what may be inferred from the price stipulated in the sale, that price may be taken as what its value would have been, had it been as warranted."

78

§ 1690. Actual loss or injury as damages.-The measure of damages has been declared to be the injury sustained by the plaintiff in consequence of a breach of warranty in the sale of chattels. So the amount which it would cost to place a soda water apparatus in the condition in which it was warranted to v. Levi, 21 Tex. Civ. App. 109; 50 | 85; Willings v. Consequa, Pet. C. Ct. S. W. 606. 172; Youqua v. Nixon, Pet. C. Ct.

73 Weis v. Ahrenbeck, 5 Tex. Civ. 221, 224; Consequa v. Willings, Pet. App. 542; 24 S. W. 356. C. Ct. 225.

74 Shaw v. Gilbert, 111 Wis. 165; 86 N. W. 188.

75 McHose v. Earnshaw (C. C. App. 3d C.), 55 Fed. 584.

76 Gilpins v. Consequa, Pet. C. Ct.

77 Houghton v. Carpenter, 40 Vt. 588.

78 Hogan v. Thorington, 8 Port. (Ala.) 428.

have been, measures the damages for breach of warranty." And where plaintiff sold goods on usual terms of credit to an insolvent corporation, relying on defendant's false statements that it was solvent, and the company became bankrupt before the term of credit expired, the jury should not be required to find what the account was worth before the assignment, since the damages recoverable were the amount lost on the account at the time when in the ordinary course of business it should have been collected. Again, where there is a breach of warranty to install a furnace of a given heating capacity, or to replace it, if not of that capacity, by an adequate heating apparatus, the damages are the amount it will cost to put in a heater of the required capacity. And if certain paints furnished are warranted to stand for five years, the reasonable cost of repainting, where the one furnishing the paint agreed to repaint the house in case of a breach of the warranty, and refused to do so, constitutes the amount of recovery. 82 So the measure of damages recoverable for breach of a warranty as to the color of stained glass, by a purchaser, who uses the same in the fulfillment of a contract, is the actual damage sustained by him by its use up to the time when he ascertained, or ought to have ascertained, that the glass was unfit for the use to which it was put.

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§ 1691. Purchase price as damages. If goods are accepted back, after a breach of warranty, the measure of damages for the breach is the purchase price, and the rule applies where the property is taken back without qualification by the seller on complaint of the breach. So where the purchaser rescinds the contract and returns the property for a breach of warranty, the purchase money, paid with interest, is the amount of damages. And the price paid for a warranted article can be recovered back by the purchaser only where the contract of sale has been re

79 Hodge v. Tuft, 115 Ala. 366; 22 So. 422.

80 Shaw v. Gilbert, 111 Wis. 165; 86 N. W. 188.

81 Williams v.

76 N. W. 399.

Thrall, 101 Wis. 337;

82 Reeds v. Lee, 2 Mo. App. Rep. 1122; 64 Mo. App. 683.

83 Smith v. Foote, 81 Hun, 128; 62 N. Y. St. R. 633; 30 N. Y. Supp. 639. 84 Lewis v. Doyle, 13 App. Div. 291; 43 N. Y. Supp. 201.

85 Lewis v. Doyle, 13 App. Div. 291; 43 N. Y. Supp. 201.

86 Kerr v. Emmerson, 64 Mo. App. 159; 2 Mo. App. Rep. 1066.

scinded upon the implied promise of the seller to return it as money had and received. So the invoice price of goods which were worthless is the purchaser's measure of damages in case of recovery by him; or where the goods sold and found to be of no value the sum paid for them is recoverable; and if a bill is sold upon the fraudulent representation that it is unpaid, the damages recoverable are the amount of the bill with interest.90 So where there are fraudulent misrepresentations of the value of property at the time of a trade, an action for damages is in effect an action for part of the purchase price and constitutes, during its pendency, an election to ratify the trade so as to preclude the remedy by rescission." So in a suit to recover the price paid for chattels, the vendor of which had no title at the time of sale, the action being in disaffirmance of the sale, the measure of compensation is the price paid and not the actual value. And in case of a sale of mortgage coupons, where there is no evidence of their market value at the time of sale, their purchase price constitutes the damages recoverable. So the measure of damages for a breach of warranty that a mass of timber sold for a gross price will prove to be a specified number of cords is such a proportion of the purchase money as the deficiency bears to the quantity warranted." But it is also decided that the damages are not measured in case of a breach of warranty by the difference between the purchase price and the actual value. So the price for which warranted personal property was sold by the purchaser may be inadmissible on the question of damages for breach of the warranty.

47.

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93

92

§ 1692. Purchase price-Defenses and estoppel.—Where

87 Skinner v. Mulligan, 56 Ill. App. 18 Sup. Ct. Rep. 274; 30 Chicago Leg. News, 179.

88 Landman v. Bloomer, 117 Ala. 312; 23 So. 75; Chase v. Evarts, 47 N. Y. St. R. 425; 19 N. Y. Supp. 987.

89 Callender I. & W. Co. v. Badger, 30 Ill. App. 314; Hayner v. Churchill, 29 Mo. App. 676.

90 Spikes v. English, 4 Strobh. (S. C.) 34.

91 Stuart v. Hayden, 169 U. S. 1; Adv. S. U. S. 302; 42 L. Ed. 639, 1204;

92 Wilkinson v. Ferrie, 24 Pa. St. 190.

93 South Covington & C. S. R. Co. v. Gest, C. C. S. D. Ohio, 34 Fed. 628. 94 Parker v. Barlow, 93 Ga. 700; 21. S. E. 213.

95 Park v. Richardson-Boyington Furnace Co. 91 Wis. 189; 64 N. W. 859. 96 Hogan v. Shuart, 11 Mont. 498; 28 Pac. 969.