Walls v. Gates

• Decision Date: 01 May 1877
• Citation: 4 Mo.App. 1
• Parties: GASTON B. WALLS, Respondent, v. WILLIAM J. GATES, Appellant.
• Court: Missouri Court of Appeals

4 Mo.App. 1

GASTON B. WALLS, Respondent,

v.WILLIAM J. GATES, Appellant.

St. Louis Court of Appeals, Missouri.

May 1, 1877.

1. The measure of damages in an action upon a warranty, for a breach thereof, is the difference between the price paid and the value of the article sold. If the vendee is at expense in keeping the article, he may recover for such time as is sufficient to enable him to resell after notice to the vendor.

2. In an action upon an agreement of rescission of a contract, the measure of damages is the amount of the purchase-money.

3. Where, upon a sale with warranty, the vendee is at liberty to return the article sold, an offer to return is equivalent to an offer accepted by the vendor, and in that case the contract is rescinded and at an end; but to give it this effect, the offer must be unconditional.

4. A bill of exceptions need not set out in full the evidence as given; it is sufficient, in actions at law, to state that evidence tending to prove the particular fact was given.

APPEAL from St. Louis Circuit Court.

Reversed and remanded.

JOHN P. HUDGENS, for appellant: Tender.-- McJilton v. Sawyer, 18 Mo. 111; Berthold v. Reyburn, 37 Mo. 586; Thayer v. Brocket, 12 Mass. 465; 1 Chitty's Gen. Pr. 508; 2 Pars. on Con. 648. Measure of damages.--4 Mo. 14; 30 Mo. 385, 406.MARSHALL & BARCLAY, for respondent: Bills of exceptions.-- The State v. Shebane, 25 Mo. 565; Blackenship v. North Missouri R. Co., 48 Mo. 376. Rescission and tender.-- Casey v. Smales, 4 Mo. 77; Brown v. Alexander, 27 Mo. 430; Ferguson v. Oliver, 8 Smed. & M. 332; Thornton v. Wynn, 12 Wheat. 192; Story on Con., sec. 977. Measure of damages.-- White v. Salisbury, 33 Mo. 150; Story on Sales, 332.

BAKEWELL, J., delivered the opinion of the court.

This is a proceeding commenced originally before a justice of the peace. The plaintiff, in his written statement of the cause of action, alleges that he purchased a horse of defendant for $140, which defendant warranted sound, and accustomed to work in harness; that the horse, at the time of the sale, was unsound, and would not work in harness, by reason of all which he was worthless; that plaintiff offered to return the horse on payment of the purchase-money, to which defendant agreed, but has failed and refuses to receive the horse and return the purchase-money. Plaintiff tenders the horse, and asks judgment for the purchase-money. For a second cause of action, plaintiff states that he has spent $15 a month for the keep of the horse, for which he also asks judgment.

The bill of exceptions states that plaintiff offered testimony tending to prove that the horse was string-halt at the time of sale, and would not work, single or double; and that the warranty had been broken; that, three weeks after the sale, plaintiff offered to return the horse if defendant would pay the purchase-money, with interest, and $15 a month for his keep, and that defendant agreed to take the horse back on condition that he was delivered in as good order as sold, which he afterwards declined to do, but offered to give plaintiff another horse. Plaintiff, also, at the trial, announced that he was ready to return the horse if defendant could pay him $280, the amount he claimed to be damaged. Plaintiff testified that he had refused to let defendant see the horse, or have him, unless the $280 was first paid him. Plaintiff offered evidence of the value of keeping a horse, and closed his case.

Defendant offered evidence tending to prove that the horse was sound when sold, and worked single and double; that plaintiff had injured the horse since the sale, and had refused, up to the trial, to let defendant see the horse unless he would first pay $280. Also, that the horse had been used all the time by plaintiff, and the value of his use.

The court, at the instance of plaintiff, instructed the jury that, if they believed from the evidence that the horse was warranted sound and accustomed to work in single and double harness, and was not sound, etc., when sold, they should find for plaintiff; and also gave the following instruction at the instance of plaintiff:

“If the jury find for the plaintiff, and believe from the evidence that, within a reasonable time after the purchase of the horse by plaintiff, and immediately after the discovery by plaintiff that the horse was not as he was warranted to be by defendant, the plaintiff notified defendant of the fact, and offered to return the horse to defendant upon a return by defendant of the money paid him by plaintiff, and that defendant agreed to take back the horse and refund the purchase-money, and that plaintiff still offers to return the horse to defendant, and defendant refuses to return the purchase-money, then they will find for plaintiff in a sum equal to the value of the horse at the time of the sale, had he been in all respects as warranted, with six per cent interest from the day of sale, and also a further amount equal to the actual cost of keeping and feeding and taking care of the horse up to the day of judgment, less the value for the use of the horse, if the jury believe plaintiff was accustomed to use him during that time.”

There was a verdict and judgment for $137.80; and defendant appeals.

The ordinary remedy upon breach of warranty, where the purchase-money has been paid, is an action upon the warranty, in which the measure of damages is the difference between the price paid and the value of the article sold. If the buyer be compelled to keep the article sold, and be put to expense thereby, he may recover expenses for such length of time as would be reasonably sufficient to enable him to resell, where he has given notice to the vendor. If this,...