DEFENDANTS’ APPEAL.
after stating the case: The court held, and so charged the jury, that there was no evidence of unsoundness, and confined the inquiry to the ungentleness of the mare. Defendants contend that after plaintiff had time to ascertain the qualities of the mare, and that she was frightened by automobiles, he brought her to defendants’ stables and they offered to take her back and surrender the note given for her price, and plaintiff rejected the offer and took the mare to his home. Plaintiff replies that he was not bound to rescind the contract at that time, as there already had been a breach of the contract, and he had an election to rescind or not, and, besides, that he acted upon defendants’ original warranty and further assurance given, when he returned to the stable with the mare, that defendants knew the mare was gentle .and sound. It is true that this was denied by the defendants, but the court left this controversy to the jury under an instruction which was perfectly fair to defendants and stated the rule of law correctly. The jury evidently found, under the evidence and the charge, that the defendants renewed their original assurances of soundness and gentle*275ness, and tbe plaintiff, in tbe exercise of ordinary care, relied upon it, and governed bimself accordingly; tbat be did wbat a man of ordinary prudence would bave done in tbe same circumstances. But tbe motion of defendants to nonsuit only raises tbé question wbetber tbe plaintiff’s evidence, in any reasonable view of it, sustained bis cause of action, and we tbink tbat it did, and tbat tbe court properly submitted tbe issue to tbe jury.
Tbis case is somewhat like Hodges v. Smith, 158 N. C., 256, where it is said, at pp. 262, 263, after citing numerous cases: “Applying tbe principle as thus gathered from tbe authorities, tbe court erred in not submitting tbe case to tbe jury to find tbe facts and to pass upon tbe question of warranty. Tbe language of tbe parties, as used at tbe time of tbe transaction, is quite as strong to show a warranty as any to be found in tbe cases we bave cited. Tbe defendant was a dealer in horses, and by tbe testimony as we now bave it he, at least, affirmed tbat tbe horse be sold to tbe plaintiff was of tbe description be wanted — kind and gentle in harness, and so well broken tbat even a lady could drive him with safety. Tbe plaintiff says tbat be relied upon tbat representation, and bought the horse believing it to be true, and being induced thereby to buy. Tbe jury must decide wbetber it was intended and accepted as a warranty, and also, upon tbe evidence, wbetber there has been a breach thereof, there being evidence of a breach for them to consider.” Tiffany on Sales, 162; Wrenn v. Morgan, 148 N. C., 101; Harris v. Cannady, 149 N. C., 81.
Tbe buyer of a horse warranted to be gentle and kind in harness is not bound to accept an offer of tbe seller to rescind tbe contract, if tbe warranty has been breached, but may keep tbe animal and rely on bis action for tbe breach and recover bis damages. Kester v. Miller, 119 N. C., 475; Robinson v. Huffstetler, 165 N. C., 459; Alpha Mills v. Engine Co., 116 N. C., 797; Lewis v. Rountree, 78 N. C., 323; Cox v. Long, 69 N. C., 7; Cable Co. v. Macon, 153 N. C., 150; 35 Cyc., 434. It is said in Gox v. Long, supra: “Where an article is warranted, and tbe warranty is not complied with, tbe vendee has three courses, any one of which be may pursue: (1) He may refuse to receive tbe article at all; (2) be may receive it and bring a cross-action for a breach of tbe warranty; or (3) be may, without bringing a cross-action, use tbe breach of warranty in reduction of tbe damages in an .action brought by tbe vendor for tbe price.” In tbis respect we find no error, as tbe plaintiff bad tbe right to sue upon tbe warranty, notwithstanding wbat occurred between him and Mr. Finch at tbe stable when be came back with tbe mare and complained of her ungentleness. Tbe motion to nonsuit was, therefore, properly denied, there being some evidence of a breach of tbe warranty.
*276Tbe court applied the correct rule as to the measure of damages. Parker v. Fenwick, 138 N. C., 209; Spiers v. Halsted, 74 N. C., 620; Mfg. Co. v. Gray, 126 N. C., 108; Marsh v. McPherson, 105 U. S., 709; Cable Co. v. Macon, supra; Robertson v. Halton, 156 N. C., 215; Guano Co. v. Live-stock Co., 168 N. C., 442-450. “The general rule as to the measure of damages on a breach of warranty is that the buyer is entitled to recover the difference between the actual value of the goods and what the value would have been if the goods had been as warranted, and in the application of the rule it is held that the fact that the goods were actually worth the price paid for them is immaterial. . . . It is true that in some cases the rule has been stated that the measure of damages is the difference between the purchase price and the actual value of the goods, but in nearly all of these cases the theory undoubtedly is that, in accordance with the general rule, if there is no other evidence of the actual value of the goods, the piurchase price will be regarded as the actual value.” 35 Cyc., 468.
It follows there was no error in defendant’s appeal.
No error.
PLAINTIFFS APPEAL.
If, as we have shown in the defendant’s appeal, the plaintiff was not bound to rescind the contract and give up the mare upon a surrender of the note, the court had no power to rescind it without his consent. He had obtained a verdict for the damages resulting from the breach of warranty, and the action sounded only in damages.' The court should have set aside the verdict, if deemed to be against the weight of the evidence, or if it considered the damages as excessive. This was a matter lying within its discretion. But it did not do this, but entered a judgment which was not germane to the cause of action or to the verdict, but quite different, in its nature, from both of them. If the verdict was allowed to stand, the plaintiff was entitled in law, and as matter of right, to a judgment for the amount of damages assessed by the jury and to his costs; and, therefore, the judgment rendered by the court will be set aside and a judgment entered as above indicated.
If the parties hereafter agree that the contract may be rescinded, or that the amount recovered may be credited on the note, or if they agree upon any other terms of settlement, judgment may be entered accordingly; but otherwise, or without their consent, no judgment other than one upon the verdict, and for costs to the plaintiff, can be given.
It may be that the amount of damages indicates that the jury were endeavoring to adjust the controversy on equitable terms, amounting to a rescission, believing that the recovery would offset the note and that the horse would be given up to the defendants. But we cannot act upon this supposition, as it was not the question submitted to the jury. *277We must regard tbe verdict as strictly responsive to the-issue, and only as assessing plaintiff’s damages. It is a cardinal rule that the judgment must follow the verdict, and if the jury have given a specified sum in an action for damages, the Court cannot increase or decrease the amount, nor can it change the substance of the verdict; the remedy for any error committed by the jury being a new trial. Black on Judgments (2 Ed.), sec. 142. It follows, therefore, that the judge erred in reforming the verdict or in giving a judgment contrary to its findings.
Since this opinion was prepared, the parties have agreed that the amount of the recovery may be credited on the note, and this will be done in the court below and provided for in the judgment, the costs to be paid by the defendant. There was error in this appeal.
Error.