Bartol, C. J.,
delivered the opinion of the Court.
In this case the verdict was rendered in favor of the appellee, plaintiff below, on the 21st day of April 1877, and judgment entered thereon the same day ; on the 25th [367]*367day of the same month the defendant appealed. During the trial one exception was taken by the appellant to the ruling of the Court on the prayers, and the hill of exceptions was signed on the 2th day of July 1877. The appellee contends that this was too late; — that the bill of exception's cannot be considered by this Court, and for that reason has moved to dismiss the appeal.
It appears from the record, and the proof taken on the motion, that on the 28th day of April 1877 a bill of exceptions prepared by the appellant’s attorney was tendered to the Judge to be signed, but the attorney for the appellee objected to the bill of exceptions so tendered ; and stated that he proposed to leave Baltimore on the following Monday (April 30th) for the West. Whereupon the Court extended the time for filing the bill of exceptions till the first day of June 1877.
It appears that the appellee’s attorney returned to Baltimore about the 17th day of May, but he did not notify the appellant or his attorney of his return. We lay no stress upon the notification given by him to the witness Wm. Edwin Trundle, because it is proved by the latter, that he did not inform his brother, the appellant’s attorney, that he had no connection with the case, and paid no attention to the matter. It appears by the affidavit of appellant’s attorney that he called several times during the month of May at the office of Mr. Williams, the attorney of appellee, to inquire if he had returned from the West, and in fact had no knowledge of his return, till after the first day of June, when he immediately made an appointment with Mr. Williams to go into Court, and have the matter of the bill of exceptions settled. They met in Court for that purpose about the 9th day of June. But Mr. Williams not agreeing to the form of the bill of exceptions tendered by appellant’s attorney, was requested by the Judge to prepare a form of exception, according to his own idea — and the Court directed the attorneys each to [368]*368submit objections in writing to the form of exceptions prepared on tbe other side; which was accordingly done on or about the 12th day of June.
. The delay which occurred thereafter is sufficiently explained by the press of business in the Court, and the physical indisposition of the Judge, which prevented him from giving his attention to the matter until the 9th day of July ISTT, when the form of the hill of exceptions was settled and the same was signed and sealed on that day. The appellee’s attorney objected, and the Judge affixed his signature, stating that he did so, after the Term had elapsed, at the instance of appellant, leaving the question of right between the parties to be determined by this Court.
There is some conflict in the recollection of the witnesses on minor points, but we have stated the facts substantially as we find them in the proof; and we think the motion to dismiss ought not to prevail.
The appellant’s attorney seems to have used due and reasonable diligence in preparing, and presenting his hill of exceptions. The delay in signing it was first occasioned by the absence of Mr. Williams from the city. As the length of his absence was not definitely known, it was his duty to give notice of his return to the appellant or his attorney.
This he failed to do; due diligence appears to have been used by the appellant’s attorney to ascertain if he had returned, so as to have the bill of exceptions presented to the Judge by the first day of June, according to the order of the Court. The failure to accomplish this was owing to the omission on the part of Mr. Williams to give notice of his return to the city. Afterwards the delay which occurred was not from any fault or laches of the appellant or his attorney, and in our judgment the bill of exceptions was properly signed and was in time.
The Rule of Court, a copy of which is in the record, requires the bill of exceptions to be prepared and sub[369]*369mitted to the Court, during the sittings of the term at which it shall have been taken, in every case, unless otherwise expressly allowed by the Court. Here the time was expressly extended till the first day of June. The delay which thereafter occurred was not through any fault of the appellant. In our opinion the action of the Court on the 9th day of June, was equivalent to an allowance of further time by the Court, and under all the circumstances we think the appellee’s objection to the delay ought not to he sustained.
The motion to dismiss is therefore overruled.
The suit was brought to recover for an alleged breach of warranty by the appellant, in selling to the appellee an unsound mare, warranted to he sound.
It is unnecessary to state at length the testimony contained in the hill of exceptions, it is in many respects contradictory, as generally happens in “horse cases,” especially where the parties litigant are witnesses.
The only exception, was taken to the ruling of the Court below on the prayers, these are based exclusively on the evidence; no reference being made therein to the pleadings, these need not he noticed.
The appellee offered two prayers which were granted, and the appellant seven, of these all were granted except the third and fourth.
It is stated in the hill of exceptions that the fifth and seventh were granted, with modifications by the Court, and exception was taken to the modifications ; hut it does not appear in what the modifications consisted; we cannot therefore express any opinion thereon. It was intimated in the argument that the modifications were made by adding to the prayers the concluding sentence, declaring what constitutes an acceptance under the Statute of Frauds. If this he so, we find no error therein.
We direct our attention to the only matters embraced in the exception, viz., to the first and second prayers [370]*370of the appellee, and the third and fourth of the appellant.
1. The first prayer submits to the jury to find that at the time of the purchase the defendant warranted the mare to he sound, and claims the right to recover if the jury shall so find, and shall find that she was at that time unsound ; and shall further find that the plaintiff paid the full amount of the purchase money, and that he offered to return the mare in a reasonable time after discovering her unsoundness.
This prayer is free from objection and it was not error to grant'it. Indeed, to entitle the plaintiff to recover for the breach of warranty, it was not necessary for him to offer to return the mare; as was decided in Franklin & Armfield vs. Long, 7 G. & J., 407, and Lane vs. Lantz, 27 Md., 211.
Special objection was made to this prayer in the Court below, on the ground that it submitted a question of law to the jury, in leaving to them to determine whether there was a warranty, without defining what constitutes a warranty. But we do not think the objection was well taken. Sometimes it is properly a question of law for the Court to determine, whether certain words constitute a warranty ; this rule applies where the contract is in writing. But as said in
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Bartol, C. J.,
delivered the opinion of the Court.
In this case the verdict was rendered in favor of the appellee, plaintiff below, on the 21st day of April 1877, and judgment entered thereon the same day ; on the 25th [367]*367day of the same month the defendant appealed. During the trial one exception was taken by the appellant to the ruling of the Court on the prayers, and the hill of exceptions was signed on the 2th day of July 1877. The appellee contends that this was too late; — that the bill of exception's cannot be considered by this Court, and for that reason has moved to dismiss the appeal.
It appears from the record, and the proof taken on the motion, that on the 28th day of April 1877 a bill of exceptions prepared by the appellant’s attorney was tendered to the Judge to be signed, but the attorney for the appellee objected to the bill of exceptions so tendered ; and stated that he proposed to leave Baltimore on the following Monday (April 30th) for the West. Whereupon the Court extended the time for filing the bill of exceptions till the first day of June 1877.
It appears that the appellee’s attorney returned to Baltimore about the 17th day of May, but he did not notify the appellant or his attorney of his return. We lay no stress upon the notification given by him to the witness Wm. Edwin Trundle, because it is proved by the latter, that he did not inform his brother, the appellant’s attorney, that he had no connection with the case, and paid no attention to the matter. It appears by the affidavit of appellant’s attorney that he called several times during the month of May at the office of Mr. Williams, the attorney of appellee, to inquire if he had returned from the West, and in fact had no knowledge of his return, till after the first day of June, when he immediately made an appointment with Mr. Williams to go into Court, and have the matter of the bill of exceptions settled. They met in Court for that purpose about the 9th day of June. But Mr. Williams not agreeing to the form of the bill of exceptions tendered by appellant’s attorney, was requested by the Judge to prepare a form of exception, according to his own idea — and the Court directed the attorneys each to [368]*368submit objections in writing to the form of exceptions prepared on tbe other side; which was accordingly done on or about the 12th day of June.
. The delay which occurred thereafter is sufficiently explained by the press of business in the Court, and the physical indisposition of the Judge, which prevented him from giving his attention to the matter until the 9th day of July ISTT, when the form of the hill of exceptions was settled and the same was signed and sealed on that day. The appellee’s attorney objected, and the Judge affixed his signature, stating that he did so, after the Term had elapsed, at the instance of appellant, leaving the question of right between the parties to be determined by this Court.
There is some conflict in the recollection of the witnesses on minor points, but we have stated the facts substantially as we find them in the proof; and we think the motion to dismiss ought not to prevail.
The appellant’s attorney seems to have used due and reasonable diligence in preparing, and presenting his hill of exceptions. The delay in signing it was first occasioned by the absence of Mr. Williams from the city. As the length of his absence was not definitely known, it was his duty to give notice of his return to the appellant or his attorney.
This he failed to do; due diligence appears to have been used by the appellant’s attorney to ascertain if he had returned, so as to have the bill of exceptions presented to the Judge by the first day of June, according to the order of the Court. The failure to accomplish this was owing to the omission on the part of Mr. Williams to give notice of his return to the city. Afterwards the delay which occurred was not from any fault or laches of the appellant or his attorney, and in our judgment the bill of exceptions was properly signed and was in time.
The Rule of Court, a copy of which is in the record, requires the bill of exceptions to be prepared and sub[369]*369mitted to the Court, during the sittings of the term at which it shall have been taken, in every case, unless otherwise expressly allowed by the Court. Here the time was expressly extended till the first day of June. The delay which thereafter occurred was not through any fault of the appellant. In our opinion the action of the Court on the 9th day of June, was equivalent to an allowance of further time by the Court, and under all the circumstances we think the appellee’s objection to the delay ought not to he sustained.
The motion to dismiss is therefore overruled.
The suit was brought to recover for an alleged breach of warranty by the appellant, in selling to the appellee an unsound mare, warranted to he sound.
It is unnecessary to state at length the testimony contained in the hill of exceptions, it is in many respects contradictory, as generally happens in “horse cases,” especially where the parties litigant are witnesses.
The only exception, was taken to the ruling of the Court below on the prayers, these are based exclusively on the evidence; no reference being made therein to the pleadings, these need not he noticed.
The appellee offered two prayers which were granted, and the appellant seven, of these all were granted except the third and fourth.
It is stated in the hill of exceptions that the fifth and seventh were granted, with modifications by the Court, and exception was taken to the modifications ; hut it does not appear in what the modifications consisted; we cannot therefore express any opinion thereon. It was intimated in the argument that the modifications were made by adding to the prayers the concluding sentence, declaring what constitutes an acceptance under the Statute of Frauds. If this he so, we find no error therein.
We direct our attention to the only matters embraced in the exception, viz., to the first and second prayers [370]*370of the appellee, and the third and fourth of the appellant.
1. The first prayer submits to the jury to find that at the time of the purchase the defendant warranted the mare to he sound, and claims the right to recover if the jury shall so find, and shall find that she was at that time unsound ; and shall further find that the plaintiff paid the full amount of the purchase money, and that he offered to return the mare in a reasonable time after discovering her unsoundness.
This prayer is free from objection and it was not error to grant'it. Indeed, to entitle the plaintiff to recover for the breach of warranty, it was not necessary for him to offer to return the mare; as was decided in Franklin & Armfield vs. Long, 7 G. & J., 407, and Lane vs. Lantz, 27 Md., 211.
Special objection was made to this prayer in the Court below, on the ground that it submitted a question of law to the jury, in leaving to them to determine whether there was a warranty, without defining what constitutes a warranty. But we do not think the objection was well taken. Sometimes it is properly a question of law for the Court to determine, whether certain words constitute a warranty ; this rule applies where the contract is in writing. But as said in Osgood vs. Lewis, 2 H. & G., 518, “in cases of oral contracts; on the existence of the necessary ingredients to such a warranty, it is the province of the jury to decide, upon considering all the circumstances attending the transaction. But of written contracts the Court are the expositors. ”
2. The second prayer of the appellee relates to the measure of damages ; and instructed the jury if they should find for the plaintiff, “the measure of damages is the amount of money they may find the plaintiff paid the defendant, with interest from the date of such payment, together with such expenses as they may find he was sub[371]*371jected to, by reason of the unsoundness of the said mare, up to the time of tbe tender of the animal to the defendant, if the jury should find such tender. ”
We think it was error to grant this prayer.
The evidence on the part of the appellee was that the negotiation for the purchase began on the 20th day of May 1876, the price asked was $175 ; plaintiff said “ I will take her if she is sounddefendant said “ she is perfectly sound.” On the 23rd plaintiff wrote to defendant saying “if the mare is sound I will take her.” On the same day defendant wrote to plaintiff as follows :
“Baltimore, May 23, 1876.
“Mr. Sam Buck,
“Dear Sir: — The mare is sound to the best of my knowledge; you can have her at any time.
“Yours, very truly,
“Ernest B. Horn.”
On the same day plaintiff sent for the mare and took her away, and drove her the same afternoon; kept and used her till the 26th, when defendant called for the money. According to plaintiff’s testimony, he then called defendant’s attention to the fact that he had discovered “a flinching, giving away or lameness in her hind leg.” The defendant said “it is all right, she is sound as a dollar,” and a check was handed him for $175. The plaintiff kept the mare and used her nearly every day till July 1st. Then he left the city, placing her at a livery stable; he returned about the last of August or first of September. In the meantime the mare being lame had been in the care of a farrier about the 27th of July — and the latter part of August.
About the 1st of September the mare was tendered to the defendant, who refused to receive her, and she was sent by the plaintiff to the establishment of McGee & Par[372]*372lett, horse auctioneers, and was sold for whom it might concern, on December 20th 1876 for $60.
Upon this state of facts it is clear the plaintiff was not entitled to recover the whole amount of the purchase money.
The measure of damages in a case of this kind, for a breach of the warranty, is the difference between the value of the mare, with the defect warranted against and the value she would have had without that defect. Lane vs. Lantz, 27 Md., 216.
In that case it was said that the price paid, in the absence of other proof, is evidence of the value of the animal, if sound. From this is to be deducted the amount she Was worth, in her actual conditipn at the time of the sale, and the difference would constitute the true measure of damages. In this case there is evidence that she was of some value; she was actually used by the plaintiff for some time, and was sold on the 20th day of December for sixty dollars.
There is evidence that the plaintiff incurred expenses for the keep and doctoring of the mare while in his possession, for which he ought to be allowed ; on the other hand he is chargeable for whatever benefit and advantage he derived from using her.
It is contended on the part of the appellee, that having elected to rescind the contract, and having offered to return the mare to the appellant, he is entitled to recover the whole purchase money.
It has been held in Maryland that for a breach of warranty of soundness a purchaser may at his election, in a reasonable time, rescind the contract, return the property or offer to return it and recover back the purchase money. Rutter vs. Blake, 2 H. & J., 353; Franklin, et al. vs. Long, 7 G. & J., 407. But it seems the modern doctrine established both in England and elsewhere in the United States, is that where the contract of sale has been executed, [373]*373and the title has vested in the purchaser hy delivery and acceptance, where there is no fraud, and no agreement to return, he is not entitled to rescind and return the property, for breach of warranty, hut his remedy in such case is hy suit on the warranty. Sedgwick on the Measure of Damages, 286, 287, m. (and note) where the cases are collected. Mr. Benjamin in his work on Sales, states the law in the same way, (2nd Ed., pp. 741, 750.)
(Decided 26th March, 1878.)
But in this case there was no valid rescission. The offer to return the property, even supposing it was made in a reasonable -time, did not of itself amount to a rescission. The proof'shows that the possession was retained hy the appellee, and that he afterwards exercised rights of ownershi p over it, sent it to auction and had it sold without any notice to the appellant; under these circumstances the appellee cannot claim to recover upon the theory that the contract had been rescinded.
We think the third and fourth prayers of the appellant were properly refused ; under his first, second, fifth, sixth and seventh prayers which were granted he had the benefit of every defence before the jury to which he was entitled.
Being of opinion for the reasons before stated that there was error in granting the second prayer of the appellee, the judgment will he reversed, and a new trial awarded.
Judgment reversed, and new trial awarded.