Reggio v. Braggiotti , 61 Mass. 166 ( 1851 )

Shaw, C. J.

The first question to be decided in this case relates to the amount which the plaintiffs are entitled to recover upon the original warranty, implied in the sale of the article to them as opium. That they are entitled to one half of the value is admitted ; but the sum paid by Henshaw, Ward & Company was a large advance on the cost. Shall they be allowed one half of that ?

A warranty binds the party entering into it to repay the difference between the actual value of the article sold, and that of an article corresponding to the warranty, or the whole value, if it prove worthless. Now the difficulty in the question arises from the uncertain meaning of the term “ value.” If it were the rule, that the price paid to the warrantor is the measure of the value, and that any loss on a subsequent sale by the vendee is not recoverable, this difficulty would be removed. Primá facie, the price first paid for the article is good evidence of its value, in one sense. But the value is not the same to both parties ; and no merchant would make a purchase unless the goods bought were worth more to him than the amount he pays for them. In this country, the established rule, in relation to damages in such actions, is, that the plaintiff may recover what he can show that he has actually lost. If the article is wholly worthless, then he shall recover what would have been its value to himself at the time of the warranty, had it corresponded with the terms of the warranty; and a subsequent sale is evidence of its value to him. In this case, the sale to Henshaw, Ward & Company was competent evidence of the market value of the opium, and, if satisfactory and uncontrolled, was conclusive upon the jury in regard to the amount to be recovered; not because they paid that sum, and the plaintiffs repaid it upon their warranty, but because that measures the actual loss sustained by them. The effect of this evidence varies in relation to different kinds of property. A second sale of a horse, for example, (and many of the English cases, in which this question is discussed relate to such property,) is not a good test of its value. The second vendor estimates, in fixing a price, his expenses in keeping the animal, and putting him in a suitable condition for sale. The English cases draw a nice distinction between loss from the failure of a warranty, and the loss of a good bargain, and hold that the latter is not admissible as an element of damages. Clare v. Maynard, 6 Ad. & El. 519, and 7 Car. & P. 741. But still, the prevalence of authority in England is, that a second sale is evidence, though not conclusive, of the value, and admissible simply as one mode of ascertaining it. ,

The plaintiffs, then, as no evidence was offered in relation to the value of the opium, to control that introduced by them, are entitled to recover one half the amount paid to Hénshaw, Ward & Company. As they gave notice to the defendants of the pendency of the first action, they are also entitled to recover their taxable costs. See Coolidge v. Brigham, 5 Met. 68. But the counsel fees cannot be allowed. These are expenses incurred by the party for his own satisfaction, and they vary so much with the character and distinction of the counsel, that it would be dangerous to permit him to impose such a charge upon an opponent; and the law measures the expenses incurred in the management of a suit by the taxable costs. The verdict must be amended in accordance with this opinion, and judgment entered upon it for the plaintiffs.