From a judgment of the district court for Dawes county, in favor of the plaintiffs, for alleged damages by reason of the purchase of a stallion from defendant, defendant appeals.
The petition alleges that in April, 1907, plaintiffs purchased from defendant a certain stallion for the sum of §500, under an oral warranty that the horse was a fair, average foal-getter, defendant well knowing that plaintiffs proposed to stand the horse for breeding purposes; that plaintiffs had no knowledge as to the qualities of the horse in that regard, and relied upon defendant’s representations and warranty; that upon a trial of the horse for an entire season, under proper care and handling in every respect, the horse proved to be utterly worthless as a breeder, and “has proved of no value whatever for the purpose purchased; that he is not and was not as warranted therein a foal-getter, and that he has proved of no Amine to the plaintiffs, to their damage in the sum of §500 in that regard.” The petition then alleges that the time of one man was devoted to the care, and handling of the horse; that the care, board, feed and nurture of the horse haAre been Avholly lost, and that the fair and reasonable value thereof is the sum of §600. It is further alleged that plaintiffs’ damages accrued through no fault or negligence of their own, but solely through the inherent defects in the horse and through his failure “to come up to the warranty aforesaid.” The prayer is for judgment for §1,100, *408“their damages as aforesaid,” with interest on $500 from April 30, 1907, and on $600 from June 12, 1908. The answer is: First, a plea to the jurisdiction, which need not be considered here; second, it admits the sale and delivery of the horse for the agreed consideration of $500, “which stallion the said plaintiffs did receive, and have kept to this day,” and denies each and every other allegation in the petition. The third averment in the answer relates to the question as to whether the horse was sold upon a written or oral agreement. It is conceded by defendant that, for the purpose of this hearing, that question is foreclosed against him by the verdict of the jury. It, therefore, will not be considered.
At the trial upon these pleadings the court instructed the jury as follows:
“No. 2. The burden of proof is upon the plaintiffs to establish by a preponderance of the evidence, as to the stallion, that they purchased said stallion for breeding purposes, at an agreed price of $500, and that they paid to defendant the said sum of $500; * * * that said stallion was entirely worthless for the purpose for which he was sold and purchased, and that the plaintiffs were damaged by reason thereof in the sum of $500.”
“No. 5. The jury are instructed that, if you find in favor of the plaintiffs, then it will be your duty to allow the plaintiffs interest on the $500, being the purchase price of said stallion, from April 30, 1907, to the first day of this term of court.”
“No. 5½. You are instructed that you have nothing to do with the fact as to. whether or not the stallion in question would be good for other than breeding purposes. If the plaintiffs bought him for breeding purposes, and he was not of the kind of horse that the defendant warranted him to be in respect to foal-getting, then the plaintiffs are not required in law to keep the horse' at his fair value for any other purposes.”
It is apparent from a reading of the pleadings, in connection with these instructions, that the judgment of the *409district court cannot be sustained. If the action be treated as one for rescission, the petition is clearly insufficient, in that it contains no allegation that plaintiffs ever attempted to rescind the contract, or that they ever returned or offered to return the stallion to defendant. Such an allegation is necessary to sustain an action for rescission. McCormick Harvesting Machine Co. v. Knoll, 57 Neb. 790; Alfree Mfg. Co. v. Grape, 59 Neb. 777.
If the action be treated as one for damages for a breach of warranty, the measure of plaintiffs’ damages would be the difference between the actual market value of the horse at the time of its purchase by plaintiffs and its market value had it been as warranted and represented to him. McClatchey v. Anderson, 84 Neb. 783. The court failed to recognize either of these rules in its instructions to the jury, and the verdict returned is in excess of any sum which could he returned under either of such rules. The petition does not allege any offer to return the horse by plaintiffs, nor does it allege that the horse was of no value. The only allegation is that it was valueless for the purpose for Avhich they purchased it. The evidence discloses that, while the horse was valueless as a breeder, plaintiffs had Avorked him for two or three months; that after the horse was “broke” to harness he was “a very nice buggy horse, Avas a fine looking individual,” and a good coach horse.
It is suggested that the judgment might he sustained on the ground of fraud; and it is argued that defendant’s agent at the time of the sale made representations as to the quality of the horse, which were false and therefore fraudulent; but- here again the petition is defective in not containing any such averments. Moreover, in Young v. Filley, 19 Neb. 543, we held: “In an action for damages for a breach of warranty or fraudulent representations as to the quality of personal property sold, Avhere there is no rescission of the contract, the .measure of damages is the difference between the value of the properly as it actually Avas and what would have been its value had it *410been as represented at the time the representation or warranty was made.” In the opinion by Reese, J., our present chief justice, p. 545, it is said: “It is insisted by defendant in error that the petition alleges both a breach of warranty and fraud, and for the purpose of the case we will assume that such is the fact. In either case, where there is no allegation of a rescission of the contract, the measure of damages is the difference between the Amine of the corn as it really was at that time and Avhat it Avould have been worth had it been as represented.”
It is also argued that in June, 1908, as soon as the horse was found to be valueless, plaintiffs advised defendant of such fact, and that such notice was a waiver of any claim of necessity of a tender. Upon this point also the petition is silent.
Tn support of their claim for $600 for the care, keeping and handling of the horse during the season following their purchase, which it may be conceded Avas necessary to demonstrate Avhether or not he was as warranted, plaintiffs contend that “it seems to be the general rule in uses of breach of warranty for special purposes, etc., the damages should be such as may fairly and reasonably be considered rising naturally, that is, according to the usual course of things from the breach, or such as may be reasonably supposed to have been within the contemplation of the parties at the time, as the probable result of the breach.” Upon this point we said in Mundt v. Simpkins, 81 Neb. 1: “A sale of personal property Avith a Avarranty of its fitness for a prescribed use may be treated as a sale upon condition subsequent at the election of the purchaser, and in the event of a breach of the warranty the property may be restored and the sale rescinded.” Plaintiffs have not brought themselves within this rule by claiming a rescission and offering to restore the horse.
For the reasons above outlined, the judgment of the district court is reversed and the cause remanded for further proceedings.
Reversed.