I dissent from the decision about to be rendered in this case upon the ground that upon all the evidence the jury was amply justified in finding that there was neither an express nor an implied warranty by the plaintiff as to the condition of the cows in question; that the defendant purchased the cows after a personal inspection made by his agent and did not rely upon any material representation made by the plaintiff in the premises. It is, however, suggested in the prevailing opinion that the judgment should be reversed because the learned trial judge charged an erroneous proposition of law as to the measure of damages, viz., that if the cows purchased were actually worth in the market what the defendant agreed to pay for them the defendant could recover no damages by reason of the false warranties made to him upon the purchase of such cows. Of course, it is perfectly well settled that if the warranties alleged to have been made were made, the measure of damages would be the difference between the value of the cows if they were as represented and their value as they actually were. In this case, however, the learned trial judge charged, in substance, that if the cows delivered were actually worth the amount the defendant paid for them he could not recover damages under his counterclaim for breach of warranty. No exception was taken by the defendant to the charge of the court in that regard and, indeed, the defendant was allowed to prove over the plaintiff’s objection precisely that measure of damages which it is now claimed is erroneous. Upon the examination of a witness called by the defendant the court said: “Q. What do you say the value of the ten cows was on January 5, 1912, at Andover, taking them, as you know them to *719be, coming in as they did come in ? Mr. Gallagher [Plaintiff’s counsel]: The witness has not been shown qualified to testify. The Court: Oh, yes. The Witness: The actual value, the fair market value on that date, of the whole ten, was $480. Their fair market value, if they had all come in in the month of January, would have been $800. There were no three-teaters in the second lot. By Mr. Southard [Defendant’s counsel]: Q. Now, as to the first shipment of cows, what was the fair market value of the first shipment of cows at Constantia at the time of delivery? Mr. Gallagher: I object to that as incompetent and immaterial, and that the witness is not shown qualified to tell what the market value of cows was at Constantia. The Court: I will take it for what it is worth. Examined by the Court: The value of the first shipment, representing 44 head, in view of the condition they were actually in, under the condition that they did calve, at the time of the purchase at Constantia, was $2,360. The value would have been $3,520, with six of them fresh when purchased, if twenty-four of the others had been in condition to come in in December and January, and the other sixteen in condition to come in in January and February. The value of the bull was not considered in the price.”
So that I suggest that the defendant put in issue the market value of the cows irrespective of their value as alleged to be warranted by the plaintiff, and the defendant having put in such evidence over the objection of the plaintiff and the court having charged on the basis of such evidence and no exception having been taken to such charge by the defendant, he ought not now to be heard to argue that such charge was erroneous for the purpose of reversing this judgment.
But independent of such consideration, the defendant in this case had a fair trial and all the issues affecting his interests were submitted to the jury in a very fair charge by the trial court. Assuming that his charge as to the measure of damages was erroneous, defendant’s counsel having acquiesced in it by not making objection and, really, it appearing that that was the rule which he was contending for, as appears by the evidence which he himself introduced, it does not seem to me that the judgment in this case should be reversed for any such *720reason or upon any such ground as is set forth in the prevailing; opinion in this case.
I, therefore, recommend that the judgment and order appealed from be affirmed, with costs.
Judgment and order reversed and new trial granted, with costs to appellant to abide event.