¶1This was an action for damages for breach of warranty of a horse, the defendant denying the warranty and breach thereof; he also alleged that one of the conditions of the sale of the horse was that the purchaser, if not satisfied with the horse after trial thereof, might return him the next day and receive back his money.
¶2There was evidence tending to prove the warranty, its breach, and that the condition mentioned was made, but that the plaintiff refused to return the horse and receive his money' and elected to keep the horse and sue for damages rising from breach of the warranty. Verdict and judgment were for the defendant.
¶3The court charged the jury that “if Smart was told at the time of the sale, that if he did not like the horse he might return him, then it was the duty of Smart to so return the horse and *201get his money, and this was a condition precedent to his right to sue for breach of warranty.”
¶4This was error; the condition was that the purchaser might return the horse; it was optional with him to do so. The law on this subject is well stated in 2 Mecham, Sales, 1807:
“In cases where the language is permissible and not mandatory, it is well settled that the buyer, at his option, may avail himself of the special remedy, or waive it and sue at law for the breach of warranty.” See also 24 Am. & Eng. Enc. of Law, 1154, and eases cited.
¶5The authorities submitted by counsel for defendant in error are all in accord or consistent with this rule.
¶6The court also erred in his charge as to the measure of damage which should have been stated as the difference between the value of the horse, if it had been as represented, and its value as it actually was.
¶7The horse having been bought at a well advertised auction sale, the court said:
“If it was an open market sale, properly advertised, wasn’t the purchase price of this horse the fair market value of the horse? That is for you to determine from the evidence in this cause, gentlemen. I am not going to say to you that as a matter of law, that was the fair market value of this horse; but I say you must take all things into consideration to show whether or not it was not the fair market value of this horse. ”
¶8This was misleading, very unfair and extremely prejudicial to the plaintiff.
¶9The court also erred in refusing to admit evidence of special damages suffered by the plaintiff by reason of damage done to his carriages by the actions of the horse and expenses in attempting to cure the horse of distemper. Smoots v. Foster, 9 Circ. Dec. 218 (16 R. 612).
¶10For error in the charge, as indicated, and for error in ruling on evidence, the judgment is reversed and the cause remanded for a new trial according to law.