By the Court,
Mullin, J.
By the agreement between the parties to exchange animals, the plaintiff acquired title to the horse and the defendant to the cow. The price of the cow was paid; and when there is an agreement to sell a specific thing and the buyer pays the price, the title to it passes, and he can maintain an action of trover or replevin, for it. (Chitty on Contracts, 374.) The defendant might have refused to deliver the horse until he received the cow; but he saw fit to waive performance and complete the agreement, on his own part, by full performance. In Chapman v. Lathrop, (6 Cowen, 110,) the defendants bought of the plaintiff a quantity of goods to be paid for in cash or current bills. The goods were actually delivered to the defendants, and on the next day, when called on for the price they offered in payment a note endorsed by the plaintiff, and the balance in cash. This was refused, and trover brought. The court held that the action could not be [39]*39maintained. The chief-justice, delivering the opinion of the court, says: “ It is conceded that the plaintiffs were entitled to pay for the goods on delivery. They might have refused to part with the goods until payment. When no time is agreed on for payment, the delivery and the payment are to be simultaneous acts. But if the vendor delivers the goods to the vendee and the latter omits to pay, the property in the goods is changed. * * In case of an agreement to pay down for goods, if the vendor delivers the goods without payment, the vendee may avail himself of any legal set off, notwithstanding the agreement to pay ready money.” (Lansing v. Turner, 2 John. 13. Lupin v. Marie, 6 Wend. 77.)
It follows that the defendant could not rescind the agreement of exchange and sue for the property delivered by him to the plaintiff. His only remedy was an action for the recovery of the cow, after demand made, or for her value.
The complaint in the action sets out the agreement of exchange, and alleges that the defendant had failed and neglected to deliver said cow, and .had not paid for the mare. The value of the mare is stated to be $20, and a judgment for that amount is demanded.
Under this complaint, the plaintiff was entitled to recover the value of the cow, and that value was the only sum he was entitled to recover; and a judgment for that value would be no bar to the present action. The cow was the price paid for the horse as warranted; she was the consideration for the promise to pay whatever damages the plaintiff in this suit might sustain if the horse should not prove to be as warranted. A recovery, therefore, of the value of the cow, was entirely consistent with the right of the plaintiff herein to sue at any time thereafter for his damages resulting from a breach of the warranty.
The pleadings in the former suit do not allude to any breach of warranty, and the defendant therein was [40]*40not obliged to insist upon the breach of warranty as a defence.
Unless, therefore, the parties have actually litigated the question of warranty, in the former action, the judgment in it is not a bar to this.
The justice before whom that cause was tried testifies that the plaintiff in that suit claimed the value of the mare sold; that the defendant denied the right, on the ground that the mare was paid for by the cow given in exchange. The defendant’s counsel obviously understood the rights and liabilities of his client, and resisted the plaintiff’s right to recover the value of the mare.
But the justice further testifies that evidence as to the value of the mare was given on both sides, and he rendered judgment on the ground that he did not consider the title as passing to the plaintiff, as he found the cow had not been delivered to the plaintiff; and that the plaintiff had a right to recover the value of the mare.
It is quite obvious that the views of the justice were erroneous; that he entirely misapprehended and misapplied the rules of law applicable to the case.
But it is competent for parties to litigate in an action matters not within the issue formed by the pleadings, and which should have been excluded; and if they do so, and the judgment is not reversed, it is a bar to another action upon the matters thus litigated.
By litigating the value of the mare, the defendant in that action did not present for adjudication, directly, the question as to whether there was a warranty of the mare, or what damages, if any, he had sustained by reason of a breach of it; but by reason of the measure of the damages adopted and by which the recovery was regulated, he may have obtained a compensation in part at least for any defects the mare might have had, at the time of the sale; yet this is by no means certain. .
The plaintiff in that action was entitled to the value of the cow. He recovered the actual value of the mare [41]*41as she was at the time of the trade. If the actual value was less than the value as warranted, he did not recover back from the defendant in that suit what he had received from the plaintiff ; to wit, the mare as she was, and as she would be if as she was represented to be.
But the question is not whether the plaintiff recovered more or less than he was entitled to, but whether the plaintiff in this suit has had a compensation for the breach of the warranty.
His damages on proving a breach of the warranty, would be the difference between the value of the animal as she actually was, and as it would have been if as represented.
The plaintiff in that suit was prevented from recovering more than the actual value of the horse at the time of the trade. Whether that was more or less than the value of the cow, we do not know, and hence it is impossible to say whether the plaintiff has had any compensation whatever for the difference in value between the mare as she was and as she was represented to be. It is quite probable that he has, but it is impossible, upon the evidence, to ascertain the amount so received.
It comes to this, then: the plaintiff in the former action sought to recover for a cause of action entitling him, to a judgment, but he insisted on and proved the wrong measure of damages, by reason whereof he.recovered less than he was legally entitled to ; does that recovery bar the other party from insisting, in this action on the breach of warranty, on the full measure of damages to which he is entitled \ It seems to me not. In the absence of any proof of the value of the cow, it is impossible to say whether the plaintiff in the former action has or has not obtained the amount to which he was entitled.
If the defendant had acquiesced in the position taken by the plaintiff in the former suit, that because the de[42]*42fendant had not delivered the cow he was entitled to rescind the contract and to sue for and recover the value of the mare, he might be deemed to have consented to such rescission, and then the judgment in that suit would of course be a bar. But he insisted that the plaintiff in that suit owned the cow, and the proof did not show that he did not; so that the only effect of that proceeding is to establish the recovery by the plaintiff of a measure of damages to which he was not entitled.
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By the Court,
Mullin, J.
By the agreement between the parties to exchange animals, the plaintiff acquired title to the horse and the defendant to the cow. The price of the cow was paid; and when there is an agreement to sell a specific thing and the buyer pays the price, the title to it passes, and he can maintain an action of trover or replevin, for it. (Chitty on Contracts, 374.) The defendant might have refused to deliver the horse until he received the cow; but he saw fit to waive performance and complete the agreement, on his own part, by full performance. In Chapman v. Lathrop, (6 Cowen, 110,) the defendants bought of the plaintiff a quantity of goods to be paid for in cash or current bills. The goods were actually delivered to the defendants, and on the next day, when called on for the price they offered in payment a note endorsed by the plaintiff, and the balance in cash. This was refused, and trover brought. The court held that the action could not be [39]*39maintained. The chief-justice, delivering the opinion of the court, says: “ It is conceded that the plaintiffs were entitled to pay for the goods on delivery. They might have refused to part with the goods until payment. When no time is agreed on for payment, the delivery and the payment are to be simultaneous acts. But if the vendor delivers the goods to the vendee and the latter omits to pay, the property in the goods is changed. * * In case of an agreement to pay down for goods, if the vendor delivers the goods without payment, the vendee may avail himself of any legal set off, notwithstanding the agreement to pay ready money.” (Lansing v. Turner, 2 John. 13. Lupin v. Marie, 6 Wend. 77.)
It follows that the defendant could not rescind the agreement of exchange and sue for the property delivered by him to the plaintiff. His only remedy was an action for the recovery of the cow, after demand made, or for her value.
The complaint in the action sets out the agreement of exchange, and alleges that the defendant had failed and neglected to deliver said cow, and .had not paid for the mare. The value of the mare is stated to be $20, and a judgment for that amount is demanded.
Under this complaint, the plaintiff was entitled to recover the value of the cow, and that value was the only sum he was entitled to recover; and a judgment for that value would be no bar to the present action. The cow was the price paid for the horse as warranted; she was the consideration for the promise to pay whatever damages the plaintiff in this suit might sustain if the horse should not prove to be as warranted. A recovery, therefore, of the value of the cow, was entirely consistent with the right of the plaintiff herein to sue at any time thereafter for his damages resulting from a breach of the warranty.
The pleadings in the former suit do not allude to any breach of warranty, and the defendant therein was [40]*40not obliged to insist upon the breach of warranty as a defence.
Unless, therefore, the parties have actually litigated the question of warranty, in the former action, the judgment in it is not a bar to this.
The justice before whom that cause was tried testifies that the plaintiff in that suit claimed the value of the mare sold; that the defendant denied the right, on the ground that the mare was paid for by the cow given in exchange. The defendant’s counsel obviously understood the rights and liabilities of his client, and resisted the plaintiff’s right to recover the value of the mare.
But the justice further testifies that evidence as to the value of the mare was given on both sides, and he rendered judgment on the ground that he did not consider the title as passing to the plaintiff, as he found the cow had not been delivered to the plaintiff; and that the plaintiff had a right to recover the value of the mare.
It is quite obvious that the views of the justice were erroneous; that he entirely misapprehended and misapplied the rules of law applicable to the case.
But it is competent for parties to litigate in an action matters not within the issue formed by the pleadings, and which should have been excluded; and if they do so, and the judgment is not reversed, it is a bar to another action upon the matters thus litigated.
By litigating the value of the mare, the defendant in that action did not present for adjudication, directly, the question as to whether there was a warranty of the mare, or what damages, if any, he had sustained by reason of a breach of it; but by reason of the measure of the damages adopted and by which the recovery was regulated, he may have obtained a compensation in part at least for any defects the mare might have had, at the time of the sale; yet this is by no means certain. .
The plaintiff in that action was entitled to the value of the cow. He recovered the actual value of the mare [41]*41as she was at the time of the trade. If the actual value was less than the value as warranted, he did not recover back from the defendant in that suit what he had received from the plaintiff ; to wit, the mare as she was, and as she would be if as she was represented to be.
But the question is not whether the plaintiff recovered more or less than he was entitled to, but whether the plaintiff in this suit has had a compensation for the breach of the warranty.
His damages on proving a breach of the warranty, would be the difference between the value of the animal as she actually was, and as it would have been if as represented.
The plaintiff in that suit was prevented from recovering more than the actual value of the horse at the time of the trade. Whether that was more or less than the value of the cow, we do not know, and hence it is impossible to say whether the plaintiff has had any compensation whatever for the difference in value between the mare as she was and as she was represented to be. It is quite probable that he has, but it is impossible, upon the evidence, to ascertain the amount so received.
It comes to this, then: the plaintiff in the former action sought to recover for a cause of action entitling him, to a judgment, but he insisted on and proved the wrong measure of damages, by reason whereof he.recovered less than he was legally entitled to ; does that recovery bar the other party from insisting, in this action on the breach of warranty, on the full measure of damages to which he is entitled \ It seems to me not. In the absence of any proof of the value of the cow, it is impossible to say whether the plaintiff in the former action has or has not obtained the amount to which he was entitled.
If the defendant had acquiesced in the position taken by the plaintiff in the former suit, that because the de[42]*42fendant had not delivered the cow he was entitled to rescind the contract and to sue for and recover the value of the mare, he might be deemed to have consented to such rescission, and then the judgment in that suit would of course be a bar. But he insisted that the plaintiff in that suit owned the cow, and the proof did not show that he did not; so that the only effect of that proceeding is to establish the recovery by the plaintiff of a measure of damages to which he was not entitled.
If the question was an open one—whether the plaintiff in this action acquiesced in a rescission of the contract of sale, the finding of the jury in this case negatives any such acquiescence, and the right of action on the warranty is thus left unimpaired.
If the question is one of law, I am of opinion that the plaintiff cannot be held to have acquiesced in it. The complaint did not inform the defendant in that action that a rescission was insisted on; the claim of the defendant as stated by the justice was inconsistent with it; and we have nothing but the mental operations of the justice in deciding the cause, to authorize us to say that the subject of rescission was in the minds of the parties.
For these reasons I am of opinion that the former action was not a bar.
It is insisted by the respondent’s counsel that there was no evidence of a warranty, or of a breach of a warranty. • •
In this I cannot agree with him. The defendant told the plaintiff during the negotiations for the exchange, what work the mare had done, and said she could work well enough, then. This was a direct affirmation as to ability of the horse to labor, and is a warranty. The plaintiff swore she was good for nothing to work, and stated what he knew of her ; and others who had used her gave evidence tending to prove that she was unfit to labor.
There was sufficient evidence on both points to carry [43]*43the case to the jury, and their decision upon it must be considered as final.
[Onondaga General Term,
October 2, 1866.
I am of opinion, therefore, that the judgment of the county court is erroneous and ought to be reversed, and that of the justice affirmed.
Judgment accordingly.
Morgan, Foster and Mullin, Justices.]