(concurring.) I am of opinion that the sum for which the ■peas were sold, ($1,777.50,) being the mutual admission of the parties, was -evidence of the value of the peas as warranted. The actual value of the peas being shown to be $260, defendant’s damages would be the difference between that amount and $1,777.50. But, by the contract, defendant owed ¡the plaintiff $1,777.50,—the purchase price,—less the amount of damages from breach of the warranty, namely, $1,517.50. Deducting from this sum $340.89, the amount defendant admits to be due plaintiff on another contract, there remains an apparent indebtedness to defendant of $1,176.61. But then defendant owes plaintiff for the purchase price of the seed, namely, -$1,777.50, leaving a net balance due to plaintiff of $600.89. When a vendee claims damages for breach of warranty, he proceeds on the contract; and, if the unpaid purchase price is exactly equivalent to the amount of his damage, evidently he can recover nothing; and, if more, that the vendor may recover. Here, the case being submitted to the court by both parties, as upon uncontroverted evidence, on defendant’s own proof a verdict should have been directed for the plaintiff in the sum of $600.89. But, as the plaintiff does not appeal, the judgment though inadequate, must be affirmed.
Allen, P. J., concurs.