Tuttle v. Brown , 70 Mass. 457 ( 1855 )

Metcalf, J.

The court are of opinion that the plaintiff has no legal ground of exception to any of the rulings or instructions at the trial.

1. The instruction to the jury as to the competency and effect of the conversation, on the day of the sale of the cow, between Edward Tuttle, the plaintiff’s agent, and a witness called by the defendant, seems to us to have been precisely conformed to the law. 1 Greenl. Ev. § 113. Stiles v. Western Railroad, 8 Met. 46.

2. The conversation between the plaintiff and defendant, testified to by another witness called by the defendant, we think was rightly admitted, and that the instructions concerning it were correct. Salmon v. Ward, 2 Car. & P. 211, is directly to this point.

3. We are of opinion that it was rightly left to the jury to decide, under the instructions which had been given to them, whether the words “ the cow is all right ” were meant as a warranty of her soundness. Oliphant’s Law of Horses, 78-81. 1 Parsons on Con. (1st ed.) 464, note. Long on Sales, (2d Amer. ed.) 125.

4. In an action for breach of warranty on a sale of chattels, the rule of damages is the difference between their actual value and the value which they would have borne if they had conformed to the warranty. Reggio v. Braggiotti, 7 Cush. 166. Mayne on Damages, 88. The rule is the same in an action for a deceit in the sale. Stiles v. White; 11 Met. 356. And the same principle is applied in a suit (like this) by the seller for the price of chattels warranted, but which do not conform to the warranty, and in a suit on a note given for the chattels. The plaintiff, in such case, can recover no more than the actual value of the chattels in their condition at the time of the sale. Goodwin v. Morse, 9 Met. 278. Cothers v. Keever, 4 Barr, 168. The instruction given on this point, in the present case, was therefore right.

Exceptions overruled.