— This action is based on an alleged warranty of soundness of a lot of hogs sold by defendants to plaintiff. The judgment was for plaintiff in the trial court.
There was evidence tending to show that defendants warranted the hogs to be sound, whereas, they were infected with cholera, from which many of them afterwards died. On the other hand, there was evidence on the part of defendants tending to show that no warranty was made or intended; and furthermore, that no warranty was ashed by plaintiff or relied upon by him. In such state of the evidence defendants asked, and the court refused to give, instructions numbered 1 and 3, in which it was stated that if defendants’ affirmation of soundness was a mere expression of opinion and not intended as a warranty and not so understood by the parties, then there was no warranty and the finding should be for defendants.
Ordinarily, in the sale of personal property, the rule of caveat emptor applies, so that in litigation over warranty of soundness the question most frequently in dispute is, whether the representation was meant and relied upon as a warranty; or whether it was intended and understood to be merely the vendor’s opinion. In the former instance, the vendor is liable to the vendee if the property is unsound. In the latter, he is not. Matlock v. Meyers, 64 Mo. 531; Carter v. Black, 46 Mo. 384; Anderson v. McPike, 86 Mo. 293; Bank v. Anderson, 85 Mo. App. 351; Anthony v. Potts, 63 Mo. App. *515517. By the refusal of the instructions mentioned, the jury’s attention was in no way called to the distinction between a warranty representation and a representation of an opinion. This clearly deprived defendants of a fundamental right in the trial, viz.: to have his theory of defense specifically presented to the jury.
The court instructed the jury for plaintiff that he could recover reasonable compensation for his labor and trouble and expense in attempting to cure the hogs. We are of the opinion that a purchaser with warranty of soundness, which includes freedom from hurtful disease, is entitled to be reasonably compensated for any reasonable attempt to cure the disease. Eor that is but an effort to lessen the damage, and as such, it is a duty he owes to the vendor. A purchaser can not stand idly by and allow damage to grow which he can reasonably avert. If the effort is successful the vendor is benefited. If it is unsuccessful, the vendee ought not to suffer for having made the effort, provided it was honestly made and the expense was such as a reasonable man would have incurred. In speaking of losses to the vendee, it is said in 1 Sutherland on Damages, section 88:
“Such losses may consist of labor done and expenses incurred to prevent or lessen damages which would otherwise result from the defendant’s default or misconduct. The law imposes upon a party injured by another’s breach of contract or tort the active duty of using all ordinary care and making all reasonable exertions to render the injury as light as possible. If by his negligence or willfulness he allows the damages to be unnecessarily enhanced, the increased loss, that which was avoidable by the performance of his duty, falls upon him. This is a practical duty under a great variety of circumstances, and as the damages which are suffered by a failure to perform it are not recoverable, it is of great importance. Where it exists, the labor or expense which its performance involves is chargeable to the party liable for the *516injury thus mitigated; in other words, the reasonable cost of the measures which the injured party is bound to take to lessen the damages, whether adopted or not, will measure the compensation the party injured can recover for the injury or the part of it that such measures have or would have prevented. This is on the principle that if the efforts made are successful, the defendant will have the benefit of them; and if they prove abortive, it is but just that the expense attending them shall be borne by him.”
It follows from what we have said that on the facts of this case plaintiff’s instruction on this head, qualified by a proviso that the effort to cure the hogs was a reasonable one, under the belief that it might reasonably be expected to work a cure of some of the hogs, should be given.
Plaintiff’s instruction numbered 1 should be qualified, at the close, by the words, “unless such representations were intended and understood as merely expressions of opinion.”
Some instructions offered by defendant and refused may have been proper enough in themselves, but with those given and those we have stated should have been given, the case would be fully presented.
The judgment is reversed and the cause remanded.
Smith, P. Jconcurs;' Broaddus, J., not sitting.