The opinion of the court was delivered by
Hall, J.We think, the charge of the county court was entirely correct. The defendant had warranted the horse sound, when he was unsound. He had violated his contract. The plaintiff found a different horse on his hands from the one he had contracted for, — a sick horse, which he cannot be supposed to have wanted. It would be unreasonable, that he should be obliged to incur the trouble and risk of keeping him for a long period, in order, by experiments in medical or other treatment, to ascertain if he could not be made more valuable to him. It is but just, that he should be at liberty to get the horse off his hands in the best manner he could ; and if, in disposing of him, he acted with common prudence and discretion, we can see no reason, why the price obtained for him should not be deemed the proper measure of his value. The difference between the- price obtained and what the horse ought to be worth by the warranty would be the actual loss, which the plaintiff would sustain by the defendant’s breach of contract ; and it is right, that the plaintiff should be allowed to recover it.
It is insisted in behalf of the defendant, that, by the English authorities, the price for which an unsound horse is sold by the purchaser cannot be taken as the measure of his value, in estimating damages, unless the purchaser have previously offered to return him to the seller. But the authorities cited do not support this position. They merely show, that when the plaintiff seeks to go beyond the difference in value between the horse as sound and unsound, and, over and above that difference, claims to recover special damages for the keeping of the horse until he could sell him, he must show, that he had previously offered to return him. None of the cases go farther. In Caswell v. Coare, 1 Taunt. 566, the reason given by Ch. J. Mansfield for the rule, that the plaintiff must offer to return the horse, before he can claim damages for the keeping, is, that it is not the defendant’s fault, that the plaintiff keeps him. For he adds, “ when the warranty was broken, the plaintiff might *584instantly have sold the horse for what he could get, and might have recovered the residue of the price in damages.” It is only, then, where the purchaser desires to charge the seller with the expense of keeping the horse, until he can have an opportunity of selling him, that any offer to return him is necessary.
It distinctly appearing from the bill of exceptions, that the jury, under the charge, could have found no other damages than the difference between the horse as warranted and what he was actually worth to the plaintiff, we are satisfied the verdict was right. The judgment of the county court is therefore affirmed.