delivered the opinion of the Court:
This was an action for a breach of warranty of a horse. As to the fact of a warranty the testimony is conflicting; one witness swearing positively to a warranty, and another swearing just as positively that there was no warranty. So, too, upon the question of unsoundness, the testimony is conflicting, though, we think, the clear preponderance of the evidence is in favor of the plaintiff, on this point. In this state of the evidence we cannot disturb the verdict. It was for the jury to determine as to the credibility of the conflicting witnesses. For the purpose of showing that the horse had the glanders, the court permitted the plaintiff to show that a mule which worked with the horse took that disease, of which he died. We see no error in this. There was proof that glanders is contagious, and if that be so, then the proof was undoubtedly pertinent and proper.
The court properly refused to instruct the jury as to what would constitute a fraud in the sale of a horse. The action was on a warranty, and the jury had nothing to do with the question of fraud. ' The plaintiff could not have recovered for a fraud. Of that the justice had no jurisdiction.
The only remaining question is upon the rule laid down by the court for the measure of damages. The court told the jury that the measure of damages was the difference between the value of the horse as he was, and his value if sound. This, it is said, was in conflict with what we said in Crabtree v. Kile, 21 Ill. 180. There, the cattle were paid for in cash, at a fixed price, and it is said that in such a case the measure of damages is the difference between the price paid and the value of the cattle. If that be the correct rule in such a case, it is not applicable to a case like this, where no fixed price was paid for the horse, but another horse was given in exchange for him. That reduces the question at once to one of estimated value, and it is as feasible to estimate the value of the one horse as the other, and the rule laid down by the court in this case would seem to be the most just, and most consistent with principle in all cases; for then it gives each party the benefit of his bargain.
Had the plaintiff purchased the horse at a fixed price and paid for him in cash, if he got him at a low price he was entitled to the benefit of his bargain, which he would lose if he only recovered the price actually paid, and if he paid a high price for him, the defendant was, on the other hand, entitled to the benefit of his bargain, which he would lose if compelled to pay .the full amount of the money received. Justice would seem to require that the defendant should only be required to make good his warranty, which he does by making the horse as good as he warranted him to be; and so, too, the plaintiff is entitled to as good a horse as he bargained for, or the value of such a horse. At any rate, in a case like this where no fixed price was paid, the plaintiff is entitled to the pay for such a horse as this was warranted to be.
The judgment is affirmed.
Judgment affirmed.