Jesse M. Chase, Inc. v. Leonard , 69 Idaho 109 ( 1949 )

I agree that the judgment must be reversed because of the failure of the trial court to find upon one of the material issues in the case, i. e., the actual market value of the car at the time and place of the sale.

However, I am of the opinion that the measure of damages, announced in Smith v. Neeley, 39 Idaho 812, 231 P. 105, and Smith v. Johnson, 47 Idaho 468, 276 P. 320, has no application in this case. Those were actions in tort for damages for fraud. Here the action is on contract for breach of warranty. In this case the measure of damages is fixed by subd. 6, sec. 62-507, I.C.A. To limit the language of that sub-section by saying that, in all cases coming under it, the maximum limit of recovery is the difference between the actual value and the contract price, is unwarranted and contrary to the weight of authority. 1 U.L.A., Uniform Sales Act, sec. 69 and notes; 34 A.L.R. 549; 48 A.L.R. 985; 130 A.L.R. 762; 55 C.J. p. 1187; 25 C.J.S., Damages, § 76 page 570; 46 Am.Jur., Sales, secs. 737, 738. Particularly applicable, is the discussion in this last paragraph (738) of the early cases as contrasted with the more modern view.

In any event the adoption of either of the general rules is not necessary to a decision in this case. Here the plaintiff asks only for the difference between the actual value and the contract price. In such a situation it will be assumed, either, that he waives any greater measure of damages, or that the contract price was also the fair market value of the vehicle had it conformed to the warranty.

In this case the court ordered the sale of the car and entered judgment for the plaintiff for the difference between the amount for which it was resold and the contract price paid. The plaintiff did not seek to exercise the right to resell, provided by the statute. In such case the court had no jurisdiction to order the sale. However, the sale is now an accomplished fact, and when the case goes back for further proceedings in the trial court, the issue will be as to whether or not the car was worth more than it sold for under the order of the court.

GIVENS, J., concurs.