King v. Manning , 128 Miss. 186 ( 1921 )

Ethridge, J.,

delivered the opinion of the court.

Manning brought suit against King for two hundred and seventy-five dollars for breach of warranty of a mule bought by Manning from King. Manning bought a pair of mules for five hundred and seventy-five dollars under a, warranty of soundness. One of the mules had a scar on the left fore foot from some injury which had resulted in a hardening of the cartilage of the ankle into a bony substance, which caused the mule to become lame when worked steadily at heavy work. The pair of mules was bought for lumber hauling and other heavy work. The testimony shoived that the mule could not do steady work of a heavy nature, and would go lame after about two or three days work and went lame from plowing and other work of that kind. When the lameness was discovered, or shortly thereafter, the defendant King’s attention was called to it, and he requested Manning to keep the mule and that he would do whatever was right about it. There is a dispute in the evidence as to the soundness of the mule and whether he Avas lame, and also as to the period of time which King requested Manning to keep the mule. In the fall of the year the mule was tendered back to King, who refused to receive it. There Avas a suit brought on the warranty. No judgment was entered on the minutes at the term in Avhich the case was tried, but at a subsequent term a nunc pro tunc order was made reciting a jury verdict for one hundred dollars for the plaintiff, and that such judgment was not entered of record because of clerical error. A motion was also made by the appellant, King, to tax Manning with the cost of the suit because the verdict and judgment was for less than two hundred dollars, and the trial judge did not certify under the statute that the plaintiff had reason to believe he would recover a greater sum than two hundred dollars. It was also insisted in a motion for a new trial and here that the evidence was insufficient to support the verdict.

There Avas no proof in the record as to the real value of the mule in its lame and crippled condition. The only proof is the nature and extent of the injury coupled with the statement that the defendant had offered twenty-five dollars in satisfaction on his warranty, which was refused. The trial proceeded upon the theory of a suit in damages for breach of warranty, and the rule is in such cases that tbe plaintiff! is entitled to tbe difference in the value of tbe mule in its then condition and tbe purchase price paid for tbe mule. Hambrick v. Wilkins, 65 Miss. 18, 3 So. 67, 7 Am. St. Rep. 631. See also Westmoreland v. Walker & Atkinson, 25 Miss. 76; Stillwell, Bierce & Smith Vaile Co. v. Biloxi Canning Co., 78 Miss. 779, 29 So. 513.

For tbe error indicated, tbe judgment will be reversed, and remanded for a new trial. In this attitude of the record it is unnecessary to notice the other qustions raised, as they may not appear in a subsequent trial.

Reversed and remanded.