Virginian-pilot. (Norfolk, Va.) 1898-1911, 1899-06-03
COURT DECISIONS.
Notes of Cases Recently Decided,
Which are of Interest to
Our People.
D1GESTED BY W. B. MARTIN,
Exclusively for Virginian- Pilot.)
II. & s. MFG. CO. v. GRAY.

II. & s. MFG. CO. v. GRAY.
Supreme Court OF North Carolina.
April 4, 1899.
A BUYER or MACHINERY WHO
CONTINUES TO USE IT AFTER
DISCOVERING THAT IT IS NOT
AS WARRANTED. AND DENIES
SELLERS RIGHT TO IT. Is DEIMs
ED TO HAVE ACCEPTED IT.
IN SUCH CASE HE MAY RECOVER
HIS DAMAGES FOR BREACH OF
WARRANTY IN SELLERS SUIT
FOR THE PRICE, AND THE
MEASURE or DAMAGES IS THE
DIFFERENCE BETWEEN THE
PRICE AND THE REAL VALUE
OF THE PROPERTY RECEIVED
IL SELLER RETAINS TITLE. HE
HAS A LIEN FOR WHAT IS DUE
HIM AND MAY FORECLOSE.
The facts sufficiently appear from the
opinion Of the court.
Tile court says
1t appears that on the 18th of April,
lSSS. the defendant purchased of the
plaintiff mo. so Smith dry-kin hot
blast apparatus ut the price OF So ,337.
10 be paid for in different installmcnts.
Tie plaintiff warranted this machine to
dry $1,000 feet of green sap pine lum-
bcr of II specified thickness in twenty
four hours. The defendant, before this
machinery was shipped from plaintiffs
shops in Detroit. Mich. paid plaintiff
500 as part of the purchase money.
ana failed and refused to pay anything
more thereon but continued to hold ana
use the Kiln and apparatus. The de-
PENDANT failing and refusing to pay
plaintiff the balance of the purchase
money. this action was commenced for
the possession of tho property The de-
icndant, by his answer set IN con-
tract between the parties which gives
point and vlgor to plaintiffs action,
and enabled the court to go to the
merits of the controversy.
In this case the property not being
presen; at New Bern, II. c.. where the
trade was made. the defendant might
have treated Tie warranty as n condi-
lion precedent, and, after he tested the
machine. refuse to accent on pay for.
the same. ljut, as he continued to hold
and use the machine until he was sued
for IL. and then denied the plaintiffs
right To it, and replevincd ana held the
same. he must be deemed TO have ac-
certcd the property. ana TO have held
ard used ii as his own. His only REM
ctiy. then, was one for damages for
breach OF warranty. This remedy hc
might have il by way of cOunterc,aim
and recoupmcnt. rs he has done in this
case. l;ut when he does this. the meas
IRE Of damages is the difference be-
tween the price paid or agreed 10 be
paid ana the real or true value of the
property received. This is the only
rule by which damages may be assessed
upon breach OF warranty. unless there
nYc special damages pleaded as result
INK from the breach of warranty; and
these must he such as might have been
within the contemplation OF the parties
ana the, neutral result of the breach
Eat we need not pursue this line of
Thought further. as all claim for re-
sultins damages is expressly abandon
cd ~ this case and. had it not been.
II has been Ec!d by this court. when
Inc case was here on Il former appeal
mat such damages were too remote
and could not be sustained. When the
He!ehdant retained the possession of
his machine. and used and claimed II
as his own he became liable to plaintiff
ior the purchase money, $2.337 But
the plaintiff retained the naked legal
tue, which was Il lien on the propcrty.
an equity in the nature OF a mort.
gagc,-as II security for its debt. The
pialntiif, therefore. was entitled to
judgment for the amount OF his debt
against the defendant, less the amount
be had paid, and the difference be-
tween the price he agreed to nav and
the true value of the property when
he received it. And the plaintiff is also
entitled TO foreclosure and sale OF tho
dry kiln and apparatus" and an ap-
pication OF the proceeds to the salts
faction OF his judgment. if he RECEIVERS
judgment. as ii seems from the facts
slated in this appeal he should do. New
trial.