ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF KANSAS.
MR. JUSTICE SHIRAS, after stating the case, delivered the opinion of the court.
This was an action to recover damages for an alleged breach of warranty, and we are called upon to consider the legal effect of a plea to the action, setting up a former recovery by the plaintiffs.
The transaction out of which the controversy arose was a sale by J.A. Field & Co., defendants in error, to Clement, Eustis & Co., plaintiffs in error, of a cane mill for the sum of $1850, whereof $500 was payable in cash, and the rest in notes secured by a chattel mortgage on the mill. One of the terms of the sale was a warranty by the vendors that the mill would do as good work as any other mill for a similar purpose, and should be of good material and workmanship.
Payment of the notes not having been made, J.A. Field & Co. brought an action of replevin, under the provisions of the chattel mortgage, to recover possession of the mill, or, in default or recovering actual possession, to recover a money judgment for the unpaid purchase money, amounting to $1350 with interest. To the declaration in replevin, Clement, Eustis & Co. pleaded that, by reason of delay in delivering
the mill and of its failure to come up to the terms of the warranty, they had been damaged in an amount largely in excess of the unpaid purchase money.
The issue thus raised was submitted to a jury, with the following instructions:
"The defendants' damages would be, if entitled to damages, the whole of the cane lost by the delay caused by plaintiffs' fault and failure of the mill to work up to its capacity, and also the loss of juice during that time caused by the fault of the mill in not properly pressing it from the cane, and any expenses incurred in repairs.
"And should you find damages for defendants, and that such damages equaled or exceeded the entire debt due on the mill, then you will find for the defendants.
"If you find damages, but they do not equal plaintiffs' debt, then you will find for plaintiffs and state the value of plaintiffs' interest in the mill, which would be their debt and interest, less the damages."
Under these instructions the jury found for the plaintiffs, and assessed the value of the plaintiffs' special interest in the property at the sum of $1151.20.
As the amount of plaintiffs' unpaid purchase money, at the time of the trial, was $1350 with interest, it is obvious that the jury allowed the defendants, as a set-off, damages in an amount ...