DAUES, J.
This is an action for damages for breach of warranty growing out of the sale of an automobile. The trial below resulted in a verdict and judgment for plaintiff for $920, and defendant appeals.
Defendant was engaged in the business of selling Studebaker automobiles in the city of St. Louis. Plaintiff’s son, Harry E. Harris, negotiated the sale of a car from defendant for his mother, the plaintiff. According to plaintiff’s evidence, the car contracted for was to be a “Special Six Coupe 1920” model, but that the car delivered turned out to be a “Light Six Coupe 1919” model. The deal was made January 17, 1920, and the car delivered on the 24th day of the same month. The order as signed by plaintiff’s son' was for a Light Six, though there is evidence on the part of the plaintiff that such designation was not in the order at the time the order was signed. The bill of sale • designated the car as a “Special Six.” At any rate, in the early part of May, 1920, plaintiff discovered that the automobile was a Light Six instead of a Special Six model. Plaintiff then called on defendant and offered to return the car and defendant declined to take same back.
Plaintiff paid defendant the sum of $2785 for the automobile, which'included an allowance of $650 for an old car taken in the deal by defendant. On May 8, 1920, plaintiff, through her counsel, notified defendant that
since the car bought was a Special Six 1920 and the car delivered was a Light Six 1919, and since a tender of the automobile had been made to defendant, she demanded the return of $2785, the purchase price, and advised defendant that on Monday, May 10, 1920, suit would be insituted for said amount if same was not paid before that date. The defendant not returning, the purchase price, plaintiff took this somewhat unusual course: She advertised in the Daily Record, a legal publication in the city of St. Louis, for three successive days that she would sell the car at public auction to the highest bidder, and accordingly did sell the automobile at public auction on the Court House steps of the city of St. Louis to the highest bidder for the sum of $1600. This sale was made in September, 1920, after the car had been in the possession of plaintiff since January of that year. Plaintiff sues for the difference between $2785, the amount paid for the car, and $1600, the amount realized at the sale, with interest.
As will be seen, this is a purchaser’s suit for breach of warranty, and the course pursued by the purchaser in this case is a novel one. The petition seeks to recover for the difference between the purchase price paid defendant and the amount received by plaintiff for the car at public auction eight months afterwards, and the evidence touching the question of plaintiff’s damages was based on such fact. The evidence as brought here by the record nowhere discloses any difference between the actual value of the car received, to-wit the Light Six, at the time of the sale in January, 1920, and what the value would have been of a Special Six at that time. There is some evidence in the record, given by plaintiff’s son, that he saw a list price of the Studebaker cars and that there was a difference in such list price of $250 more for the Special Six than for the Light six, and while such evidence was not expressly ruled out by the court, the court did remark that such evidence was immaterial, and of course such was not proper evidence of the actual value
of the two cars at the time of .sale. There is some testimony on the part of the president of the defendant company as to the maximum range the two cars took during the year 1920, hut nothing as to the difference of their value, if any, in January, 1920.
Defendant’s chief'assignment of error goes to the court’s action in overruling defendant’s demurrer to the evidence.
Plaintiff, the purchaser, in the event there was a breach of warranty by defendant, had two- courses open to her. First, she could take and keep the car and sue for damages growing out' of a breach of warranty. In that case, she could recover the difference in the value between the car warranted or represented and the actual value of the car which she received at the time same was delivered. Second, she could within a reasonable time reject and return the car to the defendant, the seller. In that case she could recover the full amount paid on account of the purchase price. Counsel for respondent says the purchaser had-a third choice, to-wit “to resell the property, acting as the other party’s agent, in taking requisite steps to protect his interests, and recover the difference between the contract price and the price obtained by such resale, ’ ’ and that the plaintiff in this case chose the third remedy.
Counsel relies confidently upon the case of Stewart Produce Co. v. Gamble-Robinson, 189 Mo. App. 658, 175 S. W. 319, a decision by this court. That case, in line with the volume of the law in this State on the subject, holds that a vendor, when the vendee breaches a contract of sale and refuses to accept the property contracted for, may either store or retain the property for the vendee and sue for the entire contract price, or he, the vendor, may keep the property as his own and recover the difference between the market price at the time and place of delivery and the contract price, or such vendor may resell the property, acting as the vendee’s agent, and recover the difference between the contract price and the price obtained at such resale.
That is not the situation here. Here we have the vendee bringing, the suit, and as presently advised it is our view that the goods being delivered she had only the two- remedies above mentioned. [Excelsior Mfg. Co. v. Million, 174 Mo. App. 718, 161 S. W. 298; J. W. Jenkins Co. v. Kindle, 180 S. W. 557; Laumeier v. Dolph, 145 Mo. App. 78, 130 S. W. 360; Laumeier v. Dolph, 171 Mo. App. 81, 153 S. W. 510; Phares v. Jaynes Lbr. Co., 118 Mo. App. 546, 94 S. W. 585.]
Sutherland in his treatise on the Law of Damages (Vol. 2, 4th Ed., sec. 670), says: “The general rule of damages for breach of warranty as to quantity and quality is the difference between the actual value of the property at the time of the sale and what its value would have been if it had conformed to the warranty,” citing cases from practically every State in the Union. Likewise, Benjamin on Sales (5 Ed.), p. 1001; 2 Sedgwick on Damages, Vol. 2, (9 Ed.), sec. 762.
Plaintiff stands exactly in the position as if she had retained the property and sued for the difference in the value of the cars at the time the purchase was made. We see no reason why the purchaser who- chooses to- keep the defective chattel so delivered cannot be permitted, if he desires, to sell the property rather than keep it before bringing suit for the difference in value of the article delivered and the one contracted for. But that fact makes no difference in the- remedy nor in the measure of damages. The purchaser in that case proceeds as- though the goods are retained and recovery is upon that basis. The disposition, though at public auction and at the court house door and after giving public notice by publication, does not change the situation.
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DAUES, J.
This is an action for damages for breach of warranty growing out of the sale of an automobile. The trial below resulted in a verdict and judgment for plaintiff for $920, and defendant appeals.
Defendant was engaged in the business of selling Studebaker automobiles in the city of St. Louis. Plaintiff’s son, Harry E. Harris, negotiated the sale of a car from defendant for his mother, the plaintiff. According to plaintiff’s evidence, the car contracted for was to be a “Special Six Coupe 1920” model, but that the car delivered turned out to be a “Light Six Coupe 1919” model. The deal was made January 17, 1920, and the car delivered on the 24th day of the same month. The order as signed by plaintiff’s son' was for a Light Six, though there is evidence on the part of the plaintiff that such designation was not in the order at the time the order was signed. The bill of sale • designated the car as a “Special Six.” At any rate, in the early part of May, 1920, plaintiff discovered that the automobile was a Light Six instead of a Special Six model. Plaintiff then called on defendant and offered to return the car and defendant declined to take same back.
Plaintiff paid defendant the sum of $2785 for the automobile, which'included an allowance of $650 for an old car taken in the deal by defendant. On May 8, 1920, plaintiff, through her counsel, notified defendant that
since the car bought was a Special Six 1920 and the car delivered was a Light Six 1919, and since a tender of the automobile had been made to defendant, she demanded the return of $2785, the purchase price, and advised defendant that on Monday, May 10, 1920, suit would be insituted for said amount if same was not paid before that date. The defendant not returning, the purchase price, plaintiff took this somewhat unusual course: She advertised in the Daily Record, a legal publication in the city of St. Louis, for three successive days that she would sell the car at public auction to the highest bidder, and accordingly did sell the automobile at public auction on the Court House steps of the city of St. Louis to the highest bidder for the sum of $1600. This sale was made in September, 1920, after the car had been in the possession of plaintiff since January of that year. Plaintiff sues for the difference between $2785, the amount paid for the car, and $1600, the amount realized at the sale, with interest.
As will be seen, this is a purchaser’s suit for breach of warranty, and the course pursued by the purchaser in this case is a novel one. The petition seeks to recover for the difference between the purchase price paid defendant and the amount received by plaintiff for the car at public auction eight months afterwards, and the evidence touching the question of plaintiff’s damages was based on such fact. The evidence as brought here by the record nowhere discloses any difference between the actual value of the car received, to-wit the Light Six, at the time of the sale in January, 1920, and what the value would have been of a Special Six at that time. There is some evidence in the record, given by plaintiff’s son, that he saw a list price of the Studebaker cars and that there was a difference in such list price of $250 more for the Special Six than for the Light six, and while such evidence was not expressly ruled out by the court, the court did remark that such evidence was immaterial, and of course such was not proper evidence of the actual value
of the two cars at the time of .sale. There is some testimony on the part of the president of the defendant company as to the maximum range the two cars took during the year 1920, hut nothing as to the difference of their value, if any, in January, 1920.
Defendant’s chief'assignment of error goes to the court’s action in overruling defendant’s demurrer to the evidence.
Plaintiff, the purchaser, in the event there was a breach of warranty by defendant, had two- courses open to her. First, she could take and keep the car and sue for damages growing out' of a breach of warranty. In that case, she could recover the difference in the value between the car warranted or represented and the actual value of the car which she received at the time same was delivered. Second, she could within a reasonable time reject and return the car to the defendant, the seller. In that case she could recover the full amount paid on account of the purchase price. Counsel for respondent says the purchaser had-a third choice, to-wit “to resell the property, acting as the other party’s agent, in taking requisite steps to protect his interests, and recover the difference between the contract price and the price obtained by such resale, ’ ’ and that the plaintiff in this case chose the third remedy.
Counsel relies confidently upon the case of Stewart Produce Co. v. Gamble-Robinson, 189 Mo. App. 658, 175 S. W. 319, a decision by this court. That case, in line with the volume of the law in this State on the subject, holds that a vendor, when the vendee breaches a contract of sale and refuses to accept the property contracted for, may either store or retain the property for the vendee and sue for the entire contract price, or he, the vendor, may keep the property as his own and recover the difference between the market price at the time and place of delivery and the contract price, or such vendor may resell the property, acting as the vendee’s agent, and recover the difference between the contract price and the price obtained at such resale.
That is not the situation here. Here we have the vendee bringing, the suit, and as presently advised it is our view that the goods being delivered she had only the two- remedies above mentioned. [Excelsior Mfg. Co. v. Million, 174 Mo. App. 718, 161 S. W. 298; J. W. Jenkins Co. v. Kindle, 180 S. W. 557; Laumeier v. Dolph, 145 Mo. App. 78, 130 S. W. 360; Laumeier v. Dolph, 171 Mo. App. 81, 153 S. W. 510; Phares v. Jaynes Lbr. Co., 118 Mo. App. 546, 94 S. W. 585.]
Sutherland in his treatise on the Law of Damages (Vol. 2, 4th Ed., sec. 670), says: “The general rule of damages for breach of warranty as to quantity and quality is the difference between the actual value of the property at the time of the sale and what its value would have been if it had conformed to the warranty,” citing cases from practically every State in the Union. Likewise, Benjamin on Sales (5 Ed.), p. 1001; 2 Sedgwick on Damages, Vol. 2, (9 Ed.), sec. 762.
Plaintiff stands exactly in the position as if she had retained the property and sued for the difference in the value of the cars at the time the purchase was made. We see no reason why the purchaser who- chooses to- keep the defective chattel so delivered cannot be permitted, if he desires, to sell the property rather than keep it before bringing suit for the difference in value of the article delivered and the one contracted for. But that fact makes no difference in the- remedy nor in the measure of damages. The purchaser in that case proceeds as- though the goods are retained and recovery is upon that basis. The disposition, though at public auction and at the court house door and after giving public notice by publication, does not change the situation. The disposition of the property by the purchaser is an independent and collateral fact and had no connection with the bargain by which the plaintiff acquired the property, and such sale does not fix the damages which the defendant ought to pay for the breach of a distinct and separate contract of sale. [Sedgwick on Damages, sec. 762; Sutherland on •Damages, sec. 670.]
Counsel for respondent says that defendant cannot complain of an erroneous application of the measure of
damages in this case, for the reason that no instruction either for plaintiff or defendant was given on the measure of damages. It is true, there is no instruction on the measure of damages. Instruction No. I, however, given for plaintiff, comes close to- submitting the erroneous rule above referred to. However, with no instruction whatsoever on the measure of damages, it still remains that there is no evidence in this record to support the verdict. Nowhere is there proof of any'difference in value at the time of the sale of this car between the Light Six delivered and the Special Six contracted for. The evidence is that the price paid was $2785, and the resale price at auction was $1600, and this was the theory of damages plaintiff alleged and sought to prove, and none other.
Obviously, aside from the legal principles above discussed, an automobile bought in January and used, as plaintiff’s son admitted, to the extent of 5000 or 6000 miles from January until May, and actually kept by the plaintiff until September of that year and then sóidas a second-hand car at public auction, cannot be accepted under any hypothesis as a measure of damages in this case. It should be said that there is strong testimony on the part of the defendant that the plaintiff received the exact car contracted for; that the words' “Special Six” were written into the bill of sale by mistake; that defendant did not receive even one car of the Special Six model until after the time this sale was made. The salesman who made the sale testified that he himself had never seen a Special Six until after that time. However, it is not within our province to weigh the evidence.
We are mindful, of course, of the rule that the parties on appeal are bound by the theory adopted below. That . principle has no application here. Defendant interposed a demurrer to the-evidence at the close of plaintiff’s case • and again at the close of the-'whole case and has properly preserved the point here for review. Appellant’s position that the court erred in refusing to sustain said demurrer to the evidence is well taken, for the reason that
the evidence adduced did not show facts sufficient under the law to permit the jury to pass on the amount of damages, since there was no evidence to show a difference in the value between the Light Six car and the Special Six car, and this is the only measure of damages allowable under the facts and cireumstaiices of this case.
The petition, though a wrong theory of damages is injected into same, is deemed sufficient to state a cause of action, especially after verdict. But we cannot escape the view that this judgment must be reversed because of the lack of evidence, as herein indicated. Judgment reversed and cause remanded.
Allen, P. J.,
and
Becker, J.,
concur.