Meigs

action was brought to recover from defendant the balance due for 520 bales of oakum sold and delivered by the plaintiff to defendant at his request. The case was tried before the court, and findings filed, on which judgment was entered in favor of the plaintiff for $632.55, with costs. This appeal is from the judgment on the judgment-roll without a bill of exceptions.

It is claimed that the judgment is not the legal conclusion from the facts found. The defendant pleaded by way of defense that there was a warranty made by the plaintiff as to the quality of the oakum, and that by reason of a breach of said- warranty he suffered loss in net profits on the sale of the oakum and other damages in the sum of $574.08, and he asks that this sum be allowed and deducted from the amount that might be found due the plaintiff.

The court found that the sale was made with a warranty, and further found as follows:

The question for determination is as to the correct rule of damages in sales of personal property where the purchaser retains the property and it is inferior in quality to the warranty. The Civil Code provides (sec. 3313) : “The detriment caused by the breach of a warranty of the…