Himes v. Kiehl , 154 Pa. 190 ( 1893 )

Opinion by

Mr. Justice Gbeen,

We think the second assignment of error must be sustained. As the measure of damages in this action was the difference between the actual value of the engine as it was, at the time of the sale, and its value if it had been as warranted, it was scarcely competent to limit the inquiry as to what it was worth for the purposes of the plaintiffs. It might be worth nothing for their purposes, and nevertheless have a fair market value for other purposes. Its actual market value, no matter for what purpose, would indicate, at least approximately, how much money could have been had for it in the open market, and that sum, contrasted with what would have been its value as warranted, would be the true measure of the plaintiffs’ damage : Seigworth v. Leffel, 76 Pa. 476.

We sustain the eighth assignment of error because the charge of the court, filed of record and certified to be the same as printed in appellants’ paper book, contains a copy of the plaintiffs’ point exactly as it is printed in the eighth assignment, and also because the plaintiffs’ statement of claim sent out with the^ jury, under exception, contained a claim for $100 as the value of the horse power, and its assumed value is added in, as a part of the damages sustained by the plaintiffs. This being so, we feel constrained to accept the printed copy of the plaintiffs’ first point, as set out in the eighth assignment of error as correct. The point without the claim for the value of the horse power was entirely right and should have been affirmed, but with that claim in it the affirmance was wrong. The value of the horse power had nothing to do with the true measure of the plaintiffs’ damage.

We think the first point of the defendants, in the very terms in which it was propounded, should have been affirmed. It was based upon the proposition that the guaranty in suit was “ that the engine would give sufficient power to run the separator, or that they would take it back, and the plaintiffs without complaint or offer to return the engine continued to use it and afterwards sold it without an offer to return it.” Of course, if the jury should find that these were the actual facts of the case, the defendants were entitled to notice of the alleged defect, and to an offer to return before suit brought, and therefore the point as presented should have been affirmed.

In reality the plaintiffs contend, and they gave evidence to prove, that they did give repeated notice of the defect of the engine and did offer to return it, but it is no answer to the point to saj”- that the facts were in accordance with their contention. In point of fact one of the plaintiffs, Gf. W. Himes, testified that the guaranty was practically the same as stated in the point, and hence the plaintiffs cannot say that there was no testimony to support the point. If the court had said to the jury the point was true in the abstract, but the plaintiffs claimed that they had given notice of the defects and had tendered back the engine, and if they found such to be the real facts of the case the point would be inapplicable, then the point would have been correctly answered. The flat refusal of the point we think was error.

The same line of remark is applicable to the answer to the defendants’ fourth point. If there were no other facts affecting the subject of the point than those recited in the point, it should have been affirmed. But there were other facts of a most material character which would affect the conclusion of the point, because they showed, as alleged, that the plaintiffs had abandoned their rule to show cause and consented to its discharge, for the reason, that, in the meantime, the sheriff had levied on their goods under the execution issued upon the transferred judgment, had advertised them for sale, had refused to obey the restraining order of the court of common pleas of Jefferson county, and was proceeding to sell the goods, and they were compelled either to pay the judgment debt and costs, or submit to a sale and probable sacrifice of their goods. They preferred the former of these two courses, and paid the debt under the compulsion of the execution. This we think, if found by the jury to be the real state of facts, was sufficient explanation of the matters presented in the fourth point.

The point was refused upon other and as we think insufficient grounds. If the answer had been qualified by presenting the facts above stated, and leaving their determination to the jury with the instruction that, if they found such to be the facts, the conclusion of the point that the plaintiffs were es-topped would not be true, the point would have been correctly answered. We think' a distinct refusal upon the grounds stated by the court was erroneous, because it included nothing but the fact that no depositions were taken, nor argument held under the rule, and as that would be entirely consistent with an absolute disposal of the rule on its merits for want of testimony, it would not constitute a sufficient response to the final proposition of the point. We sustain the eleventh assignment.

As to the twelfth assignment we are quite clear that it was erroneous to permit the statement submitted by the plaintiff to be sent out with the jury. It contained a claim for $100 as the value of the horse power which, of course, could not be recovered in this action. In addition to that the amount to be allowed for the difference between the market value of the engine as it was, and its value as guaranteed according to the plaintiffs’ contention, was altogether a matter of dispute and controversy under the testimony. That difference was not represented by any fixed sum nor was any calculation of figures necessary to determine it. It was essentially a matter to be determined upon all the evidence and h}' the jury alone. The plaintiffs had no right to say arbitrarily that it was any fixed sum, and especially they had no right to say that their damage was to bé ascertained by adding together the value of the horse power, assumed at $100, and the amount of the note, $200, subtracting therefrom the arbitrary sum of $50 as being the market value of the engine as affected by its defects. The value of the horse power had nothing to do with the case, the amount of the note had only a possible and remote connection with the lawful claim of damage, and the market value of the engine was an entirely disputed question, to be determined only by the jury, no one having a right to say in advance that it was a definite fixed sum. Nor was there any complication about the figures requiring calculation. The difference between the market value and the value as guaranteed, with interest on it from the time of the breach, was all that had to be considered. We sustain the twelfth assignment.

We think the charge is fairly amenable to the criticism contained in the thirteenth assignment. There was no distinct statement as to what would be the true measure of damages anywhere in the charge. There was an approach to it, and in the right direction, in the answer to the plaintiffs’ first point. But it is not sufficiently definite, and is mingled with a supposed necessity for the plaintiffs to sell the engine, which is calculated to mislead the jury. We sustain the thirteenth assignment.

The remaining assignments are without merit and are not sustained.

Judgment reversed and new venire awarded.