This case was before us at February Term, 1899, and is reported in 124 N. C., 322. It is here now on a petition to rehear, restricted to a discussion of the measure of damages.
AArhen it was here before the defendant’s answer contained the following paragraph: “5. That if said apparatus and *114machinery had been as warranted, it would have been reasonably worth the sum of $2,331, whereas the said machinery, in the condition as it was, in reality was worth nothing.”
The plaintiff filed a replication to the defendant’s answer, setting up a counterclaim for damages, for breach of warranty, and on the trial the plaintiff offered in evidence the fifth paragraph of defendant’s answer, quoted above. The only evidence the defendant offered on the trial as to* the value of the machinery, and as affecting the question of damage, was that of I). R. Tilford, who testified as follows: “If the dry kiln had been all right, or what the contract called for, it would have been worth fully $2,331, the contract price.” Of course the record is now the same it was on the former hearing, and it is too plain for argument that upon this record, answer and evidence, the defendant could not recover more than the difference between the contract price ($2,331), and the value of the machinery $1,500) when received.
This is what was held by the Court when the case was here before, and the defendant, being met with these facts, saw his difficulty, and conceded that he could not get along with this record. He then moved the Court to be allowed to amend the record, by striking out $2,331, in paragraph 5, and inserting $3,500. This motion is made under sec. 965 of The Code. This section of The Code does seem to authorize this Court to allow amendments, by making formal parties, or by making formal amendments as to description and such like matters, in the furtherance of justice, when it is apparent that such amendments can work the parties no- harm, and only makes the record conform to the facts developed on the trial of the case.
Rut there are two objections to allowing the amendment in this case — one is, that it would be to allow the amendment of *115a record in a ease beard a year ago, for tbe purpose of enabling tbe defendant to assign error in tbe opinion of tbe Court rendered upon that bearing. But there is another reason why we can not allow tbe amendment asked for, and we prefer to put our refusal upon this ground; that is, that it is apparent to us that to allow tbe amendment would not be to make tbe record conform to tbe facts developed on tbe trial below, but would be in contradiction of tbe evidence adduced on tbe trial below, and tbe theory upon which tbe trial must have proceeded. Therefore, we can not allow tbe motion to amend, nor tbe petition for a rehearing. As tbe case went back for a new trial upon tbe opinion of tbe Court when here before, oiir ruling upon tbe motion to amend and tbe petition to rebear will not materially affect tbe defendant’s rights, as be may renew bis motion to amend in tbe court below, and it will then be a matter for tbe discretion of that court.
But tbe discussion of tbe matter has called to our attention tbe opinion delivered in this case as to tbe rule by which damages are to be ascertained, and while tbe ruling is correct as to this case, upon tbe pleadings and evidence, we are of tbe opinion that it is not correct as a general proposition of law.
Tbe writer of that opinion and of this fell into this error in treating the action as at law under tbe old practice, and tbe defendant’s answer as a defense — a recoupment — when it should have been treated as a counterclaim — a cross action. Thus treating the answer, tbe rule of damage, as we understand it (where the property has been accepted by tbe buyer as in this case), and the property purchased is machinery (as in this case) is tbe difference between tbe value of tbe property received and what it would have cost the defendant to purchase such machinery as that described in tbe contract and warranty. Marsh v. McPherson, 105 U. S., 709, cited by defendant’s counsel.
*116This we say as a matter of justice to- the parties, and also for the purpose of correcting an error on the first opportunity we have of doing so-. While the opinion delivered at February Term, 1899, is the opinion of the whole Court, the writer of the opinion, as then delivered, thinks it is proper that he should write the opinion correcting the error, as it may be that he is more responsible- for the error than the other members of the Court.
Motion to amend denied, and the petition to rehear Dismissed.