majority">Cassoday, J.

The evidence was sufficient to support the verdict. There was no error in allowing a witness on the part of the defendant to testify that he saw the defendant using the binder in question in the first harvesting of 1882. The defendant had tried the machine, and knew its condition when he purchased it in October, 1882. Had he taken the machine as it then was, without exacting any agreement or warranty, he would have been without remedy. But he consented to make the purchase only upon the plaintiff agreeing to put the machine in good working order before the working season of 1883, free of cost to the defendant, and guarantying or warranting that it would then continue to do good work for a reasonable length of time without cost or trouble of repairing. This took the case out of the rule of warranty against patent defects urged by counsel. The court properly allowed the defendant to prove the breach of each of such agreements on the part of the plaintiff, and the consequent damages. The charge fully and fairly covered the whole case. No request was made for any additional instruction.

The principal errors assigned relate to the rule of damages given in the charge to the jury, and the admission of evidence in proof of them. After stating the general rule of damage in such cases to be the difference between the value of the machine as it. would have been as warranted and its value as it was, the jury were told: “I will say, further, by way of illustration, that if you should find a breach, and find the machine as warranted would have been worth what it sold for, $250, and that the machine was of no value, you would give the $150 he has paid, and it would *615defeat the note. That would malee up the $250, and the balance above the note would be $150, what he had paid. If you find he would have made anj profit, you would add to $150 whatever ywy&i you may find he would have made if it had been as warranted.” To this, as a whole, the plaintiff duly excepted. It may be that the word “profit” was thus inaptly used, instead of loss or damage; -but the exception goes to the whole quotation, a portion of which is certainly unexceptionable, and is therefore too general to be available.

. Exception is taken because the court charged the jury: “ Where a machine of this kind is .sold with a warranty, damages in consequence of loss of grain or damage to grain by its not being put in condition that it is agreed to be put in, or not as warranted, are ordinarily regarded as too remote to be the foundation of a proper claim for damages; but if there be peculiar or exceptional circumstances affecting the agreement, then further damages may be given, if any directly arise out of those peculiar or ex.ceptional circumstances.” This was excepted to. Then, after repeatedly cautioning the-jury against the allowance of special damages unless they were sustained by the evidence on the part of the defendant within the rule stated, and after stating the ordinary presumption to the effect that, upon a machine being found defective, the purchaser 'should immediately “supply himself with other means of securing his crops,” and his duty to do so, he added: “ The claim for special damages, as I will call them, is for damages to crops,.and loss of time caused by delay in attempting to use the machine and give it a further trial as requested by the plaintiff or its agent. Whether the defendant ought to have any damages on that account will be for you to determine in view of the evidence and instructions which the court has given you, in case you find a breach.” These are the only portions of the charge excepted to. We do not *616think they were misleading. Whether the defendant had sustained any such loss or damage by reason of any breach of isuch agreement and warranty was a question of fact for the jury, and properly submitted to them. The verdict was $200. This, as appears from the record and explained by the trial judge, only included $50 for such loss or damage. The evidence is sufficient to sustain such finding.

We find no error in the record.

By the Court — The judgment of the circuit court is affirmed.

Citation profile

How this case has been treated — in progress