Beresford v. McCune

It is claimed by the defendant that there can be no recovery, because the plaintiff has not delivered back the horse to the defendant.

If the plaintiff sought to recover the price paid for the horse upon the rescission of the contract, he wpuld have first to give up the horse. But this petition does not allege a rescission of the contract, but only that the horse was unsound and dhat he claims $400 damages. It is not necessary to tender back the horse, or to rescind the contract in order to recover damages for breach of the contract of sale and warranty. The recovery, however, in the case as presented in the petition, does not depend upon the price of the animal, but upon the actual damage. This may be as much as the value of the horse. The horse may be valueless. But the plaintiff' is not obliged to give him up. He may keep him and recover his actual damage. That is the piivilege of any purchaser of warranted property. If, however, he would make the price *52of the property his rule of recovery, he should rescind and redeliver the property purchased. In the present case, there is not a finding of facts upon which a judgment can be rendered; because the actual .damage sustained by the plaintiff is not ascertained.

The case will have to.be remanded, with instructions to Ascertain the actual damages sustained by the plaintiff and to enter judgment therefor.

■ The question will be, how much less the horse was worth at the time of the sale than he would have been if sound, according to the contract.