Morgan v. Collins & McCasland , 19 Ill. 126 ( 1857 )

Catón, C. J.

The second instruction which was given for the defendants was erroneous. It is this : “ If the jury believe that the contract was rescinded, or the warranty of the machine broken, the defendants are entitled to recover from the plaintiffs whatever amount of money they may have paid upon the purchase.” This consequence did not necessarily follow from either of the events supposed in the instruction. Suppose it be true, as the evidence very strongly tends to show, that the defendants used and enjoyed the machine for a considerable portion of the season, before they returned it, and before the time of the supposed rescisión of the contract, and that during the time they used it it did good service, when properly managed, they would not be entitled to recover the full amount paid for the machine, allowing the plaintiffs nothing for the beneficial use it had been to the defendants, or for the deterioration in value of the machine, by reason of the wear and tear, or breakages, during such use. Again, admitting the other case supposed in the instruction, that the warranty of the machine was broken, it did not necessarily follow that they could recover back the full amount which they had paid for it. According to the doctrine of the instruction, no matter in how small or insignificant a particular the warranty may have been broken — no matter how valuable the machine might be, notwithstanding the particular failure, or how useful it may have been to the defendants, still, all this should count as nothing to the plaintiffs. Such is not the law1.

The judgment of the Circuit Court must be reversed, and the cause remanded.

Judgment rev&rsed.