Lacey v. Straughan

Wright, J. 1

This case was before us and affirmed at the last June Texan, upon the ground that while the instnxetion was erroneous, yet under the circumstances disclosed by the record, it was error without prejudice. Upon the appellant’s motion, a re-hearing was granted, and subsequent reflection and examination has satisfied us that the presumption of prejudice resulting from the erroneous instruction, is not sufficiently rebutted.

We understand plaintiff to claim as for a deceit px-acticed, as well as upon a warranty in the sale of the horse. He had a right to rely upon both, and the court therefore properly stated to them the law uponthese subjects. And without now discussing the rule of damages in cases of deceit, we are clear, that plaintiff could not recover those punitive in their *260 character, as directed by the court, if defendant was found liable upon his warranty. Sedgwick on Damages, 290, 807. The measure of damages in sueh cases is, the difference between the value of the animal answering the warranted character and its value at the sale in the condition in which he really was. (4 Grattan 12; and see 4 Hill, 625; 21 Vermont, 580.)

This rule, as we understand, is not seriously controverted by appellee’s counsel, but he insists that the jury only found the value of the horse without reference to the punishment of defendant. We do not so construe the record. The testimony is not before us. The allegations of the petition are denied, and we can not say that the jury did not, in arriving at their verdict, add to the correct sum, when following the true rule, an amount “sufficient to punish the defendant for his misconduct and set a salutary example before community.” This was their duty under the instruction complained of, and we can not say they did not.

Judgment reversed.

. Baldwin, J,, dissenting.