¶1delivered the opinion of the Court: .
¶2This was an action of assumpsit, commenced by appellee in the circuit court of Ogle county, against appellant. The declaration contained a special count on a promissory note given by appellant for $708.75, to appellee, and the common counts alleging that appellant was indebted to appellee in the sum óf $1000. To this declaration, appellant filed the general issue, but it was subsequently withdrawn. Several special pleas were also filed, on each of which there was formed an issue of fact.
¶3Two trials were had, resulting in verdicts in favor of appellant, but the verdicts were set aside, and new trials were granted. Afterwards, the venue of the case was changed to the circuit court of Stephenson county, where a third trial was had, resulting in a verdict and judgment in favor of plaintiff, from which defendant appeals to this court.
¶4It is objected that the court below erred in giving appellee’s first instruction. It is not liable to the criticism made by appellant’s counsel. It says that if the witness wilfully testified falsely to any material fact, then the jury were at liberty to disregard all of his uncorroborated evidence. The meaning given to it by the jury, no doubt, was that he must have knowingly sworn to what was false. If he wilfully testified falsely, then the falsehood must have been intentional; and the unobjectionable evidence referred to in the instruction would be understood as being evidence to which the jury found no objection; and they, no doubt, understood the material fact as relating to the case. It is true, the instruction might have been more precise, but we do not see that it could have misled the jury, as given.
¶5The sixth instruction given for appellee was calculated to mislead the jury. It told them that, by withdrawing the plea of the general issue, the defendant admitted all the material averments in the declaration, without stating what they were. Under such an instruction, any but lawyers would be liable to be misled to believe that the sum claimed in the declaration was a very material averment. Before this instruction was given, it should have been so modified as to have informed the jury what material averments were admitted. •
¶6The seventh of appellee’s instructions was not properly guarded. From it the jury might have understood that appellant was bound to prove all of his pleas by a preponderance of evidence, before he could succeed. It says: “The burden is upon the defendant to prove each of the several issues formed by the pleadings.” This should have been qualified by informing them that if he, however, maintained, by proof, any one of the issues, he would be entitled to a verdict. Unaccompanied by any such explanation, the jury were liable to believe all of the issues must be found in his favor, to entitle him to a verdict; whilst all persons in the profession know that if a defendant plead, and proves one plea in bar, he is entitled to judgment.
¶7The fourteenth of appellee’s instructions tells the jury to disregard the second, third, fourth and fifth of appellant’s pleas, as they present no defense to the action.
¶8The fifth plea avers that the consideration for $700 of the note was the purchase of a flock of sheep, and that appellee represented that they were cured, and entirely free from a disease called the scab, which they previously had, and if not, that appellee need not pay that sum; and it avers that they were not cured, and entirely free from that disease, and that they had continued to be infected with it, and that the flock of sheep were worthless and of no value. Whilst this1 plea is very inartificially drawn, it still presented facts, and they were traversed, which constitute a warranty and breach. If proved, as averred, it would be a warranty of soundness, and its breach. It is true, the plea does not profess, in terms, to set up a warranty, but the law Requires no form of words to constitute a warranty. In the plea, an assurance of the soundness of the sheep was averred, and the plea avers that the assurance was accepted and acted upon. The instruction was, therefore, improper, and should not have been given.
¶9The fifteenth of appellee’s instructions directs the jury to disregard the sixth plea, because it did not present a material issue. It, like the fifth, was unskillfully drawn, but is similar to the fifth, only it avers an assurance that the sheep would recover and become well of the disease called the scab. It may also be regarded as a warranty that the sheep would recover from the disease, and a breach of the warranty. That instruction should not have been given. These pleas did not profess to vary the note by parol evidence, but were, in substance, pleas of warranty.
¶10Had the pleas presented immaterial issues, the proper practice would have been to strike them from the files. By-doing so, the record becomes disincumbered of the pleas,, and the jury are freed from examining the record to ascertain the facts averred in the pleas, and thus relieving the jury from embarrassment. By striking them out, there is no tendency to prejudice the jury by telling them that such facts form no defense.
¶11If a warranty and its breach were proved, as is averred in the pleas, then appellant had the right to have the jury find the difference in the value of the property at the time the warranty was broken and what it would have been had the warranty been true, and have that sum deducted from' the note. Appellant had the right to keep the sheep, and rely upon the warranty; and in doing so, he could not, on showing a breach of the warranty, be compelled to pay for the sheep more than they were worth in their diseased condition', if the warranty and its breach were proved.
¶12After an examination of the instructions given, we are not prepared to say the court erred in withholding from the jury those that were' refused on the part of appellant. Those given, we think, fairly presented the proper legal aspect of his side of the case.
¶13But the court erred in refusing to permit Bosentiel to answer questions as to value of the sheep, and damages, as the evidence was material as to the question of warranty. The value of the property at the time when a warranty is broken, with interest, is the measure of the seller’s recovery when he sues for its value. Hence, as a- warranty and its breach were relied on in this case, such testimony was pertinent to that issue, and it should have been admitted. Without such evidence, the jury, if they found there was a warranty, and its breach, would be wholly unable to fix the amount of recovery, or to say whether there should be none, because the property was worthless.
¶14The judgment, of the court below must be reversed and the cause remanded.
¶15Judgment reversed.