This case was before us at February Term, 1899, and is reported in124 N.C. 322. It is here now on a petition to rehear, restricted to a discussion of the measure of damages.
When it was here before, the defendant's answer contained the following paragraph: "5. That if said apparatus and machinery had been as warranted, it would have been reasonably worth the sum of (114) $2,337, whereas the said machinery, in the condition as it was, in reality was worth nothing."
The plaintiff filed a replication to the defendant's answer, setting up a counterclaim for damages, for breach of warranty, and on the trial the plaintiff offered in evidence the fifth paragraph of defendant's answer, quoted above. The only evidence the defendant offered on the trial as to the value of the machinery, and as affecting the question of damage, was that of D. R. Tilford, who testified as follows: "If the dry kiln had been all right, or what the contract called for, it would have been worth fully $2,337, the contract price." Of course the record is now the same it was on the former hearing, and it is too plain for argument that upon this record, answer and evidence, the defendant could not recover more than the difference between the contract price ($2,337) and the value of the machinery ($1,500) when received.
This is what was held by the Court when the case was here before, and the defendant being met with these facts, saw his difficulty, and conceded that he could not get along with this record. He then moved the Court to be allowed to amend the record by striking out $2,337, in paragraph 5, and inserting $3,500. This motion is made under section 965 of the Code. This section of the Code does seem to authorize this Court to allow amendments, by making formal parties, or by making formal amendments as to description and such like matters, in the furtherance of justice, when it is apparent that such amendments can work the parties no harm, and only makes the record conform to the facts developed on the trial of the case.
But there are two objections to allowing the amendment in this case — one is, that it would allow the amendment of a record in a case heard a year ago, for the purpose of enabling the defendant to (115) assign error in the opinion of the Court rendered upon that hearing. But there is another reason why we can not allow the amendment asked for, and we prefer to put our refusal upon this ground; that is, that it is apparent to us that to allow the amendment would not be to make the record conform to the facts developed on the trial below, but would be in contradiction of the evidence adduced on the trial below, and the theory upon which the trial must have proceeded. Therefore, we can not allow the motion to amend, nor the petition for a rehearing. As the case went back for a new trial upon the *Page 69 opinion of the Court when here before, our ruling upon the motion to amend and the petition to rehear will not materially affect the defendant's rights, as he , may renew his motion to amend in the court below, and it will then be a matter for the discretion of that court.
But the discussion of the matter has called to our attention the opinion delivered in this case as to the rule by which damages are to be ascertained, and while the ruling is correct as to this case, upon the pleadings and evidence, we are of the opinion that it is not correct as a general proposition of law.
The writer of that opinion and of this fell into this error in treating the action as at law under the old practice, and the defendant's answer as a defense — a recoupment — when it should have been treated as a counterclaim — a cross action. Thus treating the answer, the rule of damage, as we understand it (where the property has been accepted by the buyer as in this case), and the property purchased is machinery (as in this case) is the difference between the value of the property received and what it would have cost the defendant to purchase such machinery as that described in the contract and warranty. Marsh v. McPherson, 105 U.S. 709, cited by defendant's counsel.
This we say as a matter of justice to the parties, and also for (116) the purpose of correcting an error on the first opportunity we have of doing so. While the opinion delivered at February Term, 1899, is the opinion of the whole Court, the writer of the opinion, as then delivered, thinks it is proper that he should write the opinion correcting the error, as it may be that he is more responsible for the error than the other members of the Court.
Motion to amend denied, and the petition to rehear
Dismissed.
Cited: Mfg. Co. v. Gray, 129 N.C. 440; Critcher v. Porter Co.,135 N.C. 547; Parker v. Fenwick, 138 N.C. 218; Mfg. Co. v. OilCo., 150 N.C. 151; Cable Co. v. Macon, 153 N.C. 152;Underwood v. Car Co., 166 N.C. 462; Winn v. Finch,171 N.C. 276. *Page 70