1. There can be no question but that the warranty was broken, if the property at the time of the sale, was unsound, and any damage which was the proximate result of such unsoundness was properly recoverable by the plaintiff in the court below. If the disease wilh which the slave was afflicted at the time of the sale, rendered her less valuable than she would have been if sound, the plaintiff below had the'right to recover to the extent of the damage he sustained in consequence of such unsouudness, whether she recovered from such uasoundness or not. But he could not recover for unsoundness occuring subsequent to the sale, and which was not connected with, and did not result from the former disease existing at the time the sale was made. — Marshall v. Gantt, 15 Ala. Rep. 686-688, and authorities there cited. It was not necessary in order to entitle the plaintiff to recover, that he should have proved that the disease with Wjhich the slave was affected at the time of the warranty, was of a permanent character; any unsoundness, lessening her value and depriving the party of her services, or putting him to trouble or expense in effecting a cure, will sustain the suit. *811Chitty on Con. 138; 10 Ala. Rep. 255. There was then no error in the first charge given by the court in lieu of the charge refused, nor in the refusal to give the charge-first prayed for by the counsel for the defendant below.
2. It is not necessary for the vendee to return the property or offer so to do, but he may keep it in its unsound condition and rely upon the vendor’s warranty. The offer therefore of the vendor to take the slave back and refund the purchase money in future, securing it by note with good security and payingthe costs,, expenses, &c., was properly excluded as evidence, since it was an offer the plaintiff below was not bound to accept, and refused to accept. That he said he would consult his counsel,, and notify the vendor whether he would accept his proposition or not, before he instituted suit, but which notice he -failed to give, did not deprive him of his action on the warranty. Such undertaking did not amount to a release or discharge of the vendor’s liability, especially as it is not shown he was placed in any worse condition on account of the want of such notice. This view disposes of the exclusion of the evidence of tender, and the second charge asked to be given in. behalf of the defendant helow.
3. The court was requested to charge the jury-that if they should believe there was a breach of warranty,, the measure-of damages was the difference between the true value-of the slave at the-time of the sale, and the value as estimated; by the-parties in the-trade, together with the necessary expense.and loss of hire up to the time the vendor offered to rescind. The court refused this, and charged that the- measure of damages was the difference in value between the slaves as they actually were and as they were represented to be — perfectly soundj adding the loss of hire and expense of physician’s bills-up-to the time- of the offer to rescind. We cannot readily perceive how the court could make- the offer to rescind terminate the right of the plaintiff to; recover for the loss of hire, since the evidence- of such offer was. excluded from the jury with instructions that they should not regard it for any pu;« pose. But as the charge asked, to which this is a response, and in reference to which this must be construed, fixed upon that time for terminating the right to recover for- the loss of the hire, and as the defendant was not injured thereby, if otff-*812wise correct, we should not feel authorised to reverse for that reason. Does the charge assert a correct legal proposition ? As to this point I am disposed to follow the rule laid down by this court in its previous adjudications in cases similar to this, and to hold, the true rule to be, the difference between the actual value, and the value the article would have possessed if it had conformed to the warranty — holding the price paid as evidence of that value. — Kornegay v. White, 10 Ala. Rep. 255; see also Willis, et al. v. Dudley, 10 ib. 933; Clare v. Maynard, 7 Car. & Payne, 741; (S. C. 32 Eng. C. L. Rep. 713); Sedgwick on the Meas, of Dam. 290, et seq., and authorities there cited. True, under a state of facts entirely different from that in the case before us, in the case of Hogan v. Thorington, 8 Porter’s Rep. 428, the charge given by the Circuit Court was almost identical with the charge here given, except interest instead of the loss of hire was added. The charge was, “ that the true measure of damages was the difference between the real value of the slave at the time, of the warranty, and what would have been her value if sound, with interest thereon.” But it was said by the Chief Justice, in delivering the opinion, that “ both reason and authority would graduate the defendant’s recovery by the injury he. has suffered in consequence of the false warranty;” and it was held, that although the slave at the time she was warranted, was unsound, yet if the only inconvenience attendant upon such unsoundness was the expense and trouble .incured by the defendant in curing her, he was only entitled to recover for such expense, &c. It is manifest that in the case cited, where the party had sold the property for more than it cost him, and- the only damage he had sustained was the expense of curing her and loss of lime &c., it was just that he should only be compensated for the loss he had sustained. But the case at bar does not come within the principle settled by that. Here the party retains the property, and so far as the proof discloses, no cure has been effected. It comes within the general law, as recognized and settled by the decisions in Kornegay v. White, 10 Ala. Rep. 255, and Marshall v. Gantt, supra.
In the first case it was held, that “ the plaintiff was entitled to recover to the extent the slave was impaired in value by the disease existing at the time of the warranty, and money *813necessarily paid to physicians in curing the disease may be considered by the jury,” and further, “ that in estimating the damages, the jury may allow interest on the difference between the real value of the slave at the time of the warranty, and his value if sound, according to the warranty, from the time of sale.” — Voorhees, et al. v. Earl, 2 Hill’s Rep. 288; Cary v. Graman, 4 ib. 225; Sedgwick on Dam. 290-1-2; Story on Con. § 552; Cozzins v. Whitaker, 3 Stew. & Porters Rep. 330. But the charge in this case, did not adopt the rule above laid down, so far as respects the interest on the difference in the value, but instructed the jury to enquire into the loss of hire. This would be to make the defendant compensate, not for the injury sustained, but for the probable profits which the plaintiff had lost by reason of the false warranty. Such a rule would be too uncertain in its application, and introduce too much confusion to justify its adoption, whereas interest upon the difference recognizes a fixed and stable rule, and one easy of application.
For this error, the judgment must be reversed and the cause remanded.