#### W. G. UNDERWOOD v. COBURN MOTOR CAR COMPANY.

(Filed 16 September, 1914.)

1. Vendor and Purchaser — Contracts — Warranties — Trials — Evi- ' dence — Questions for Jury.

Representations made by the vendor in the sale of an automobile, that it was durable, reliable, first-class in workmanship and material, was well made, and suitable, for the roads upon which the vendee would use it; that it would run a certain distance on 1 gallon of gasoline, and was better than a certain other car, are evidence of an express warranty of the car consequently purchased.

2. Same — Consideration.

Warranties made by the vendor of an article after the contract of sale has been completed are unenforcible for the want *459of consideration; but in this case the evidence was contradictory-on the question of whether the warranty was contemporaneously made with the sale, and was properly left to the determination of the jury, under a correct charge from the court.

3. Vendor and Purchaser — Contracts — Warranties — Measure of Damages.

Damages for the breach of warranty in the sale of an article— in this case, an automobile — are measured by the difference in the value of the car as it was represented and warranted to be and as it really was at the time of its purchase, with such special damages as the vendee incurred, at the request of the vendor, to ascertain if it could not be made to come up to the representation.

Appeal by defendant from Ferguson, J., at January Term, 1914, of PERQUIMANS.

This is a civil action tried upon these issues:

1. Did the defendant warrant the car, as alleged? Answer: Yes.

2. If so, was said car as warranted? Answer: No.

3. What damage, if any, is the plaintiff entitled to recover? Answer: Five hundred dollars ($500).

From the judgment rendered, the defendant appealed.

Qharles Whedbee, P. W. McMullen and Aydlett & Simpson for plaintiff.

J. S. McNider and Ehringhaus & Small for defendant.

BrowN, J.

This action is brought to recover damages from the defendant for an alleged breach of warranty in the sale of an E. M. F. car. The plaintiff alleged that at the time of and as an inducement to the purchase of the car the defendant warranted the same, as alleged in the complaint. The defendant denied that it warranted the car, and alleged that, if it did, the warranty was made after the sale without consideration and was nudum pactum.

There are a number of exceptions set out in the record, which we will not consider seriatim,. The several assignments of error present three matters for consideration: First, was there a warranty ? Second, was the warranty void ? and, Third, the measure of damages recoverable.

*460An express warranty is defined in 35 Oye., page 366: “When the seller makes affirmation with-respect to the article to be sold, pending the treaty of sale, upon which it is intended that the buyer shall rely in making the purchase.” Or, as stated in Pemberton v. Dean, 88 Minn., 60: “A warranty consists in representations and statement of and concerning conditions and quality of personal property, the subject of sale, made by the person making the sale to induce and bring it about.”

We think that there is abundant evidence of an express warranty, if the testimony of the plaintiff is to be believed. He testified that he went to the defendant’s place in Norfolk and saw Mr. Coburn, who showed him an E. M. E. car. Coburn told him that it was durable and reliable, first-class in workmanship and material and well made.

Coburn said that if the plaintiff bought, he would guarantee the car to be satisfactory in every respect; that it was particularly adapted for roads such as we have in -this country; and that 1 gallon of gasoline would run the car 15 miles; that it was a better car than one called the “Rauibler.”

We think that this evidence, which seems to have been believed by the jury, establishes an express warranty. The language used leaves very little for implication or construction. Lewis v. Rountree, 78 N. C., 323; Reiger v. Worth, 130 N. C., 268.

Second, it is contended by the defendant that the warranty in question was made without consideration, because it was made, as the defendant contends, after a complete contract of sale had been concluded between the plaintiff and the defendant. It is undoubtedly true that a warranty made after the contract of sale is complete is inoperative unless there is a new consideration to support it. It is well settled that the statements relied upon as a warranty must be made contemporaneously with and as a part of the contract of sale. 35 Cyc., 373; McDugald v. McFadgin, 51 N. C., 89.

We think this question was very fully, clearly, and correctly submitted to the jury by his Honor as a question of fact as to when the alleged warranty was made. It is true, as contended by the defendant, that there was some correspondence between *461tbe plaintiff and tbe defendant, looking to tbe purchase of an automobile, but tbe automobile bad not been delivered, tbe plaintiff bad not seen it, and no payment bad been made on it. It cannot be said, in view of all tbe evidence, that there was a completed contract of sale and that tbe alleged warranty was made after it bad been completed, and, therefore, without any consideration.

According to tbe plaintiff’s own testimony, tbe warranty was given by tbe president of tbe defendant and in tbe very inception' of tbe transaction. Tbe plaintiff testified that tbe “first conversation or dealing which I bad, looking to tbe purchase of this car, I bad with Mr. Coburn, who was president of the' defendant company, and the- other transaction relative to tbe purchase of this car from tbe defendant I bad wit-b Mr. Coburn personally. At tbe first of this transaction I went to Mr. Coburn’s place in Norfolk and saw Mr. Coburn and looked at an E. M. E. car.”

Then tbe witness goes on to testify, as hereinbefore set out, as to what took place between him and Mr. Coburn in respect to tbe warranty. Tbe witness further testifies that “On tbe strength of bis persuasion, I bought tbe car. I paid him a check for $100 to close tbe bargain and gave it to him personally. I did not send tbe check to him for this $100. I bad not seen tbe car which I bought, but saw one of tbe same kind in tbe shop. Tbe price I paid for tbe car, with tbe fixtures, was $1,407.40. I afterwards sent him a check for $1,307.40.” That this testimony, taken to be true, makes out a clear case of a contemporaneous warranty as a part of tbe sale transaction scarcely admits of a doubt.

Third, it is contended by .the defendant bis Honor made a number' of errors in bis charge upon tbe question of damage. There is abundant evidence introduced on tbe part of tbe plaintiff that the car was not first-class in workmanship or material and was not well made. According to tbe plaintiff’s testimony,. tbe car was exceedingly defective and almost worthless.

Tbe evidence also shows that tbe plaintiff made complaint to tbe defendant at once. His Honor charged tbe jury that tbe measure of damages would be tbe difference in the value of tbe *462car as it was represented and warranted to be and as tbe jury shall find it was at tbe time of tbe purchase. This is in accordance witb all tbe decisions. In tbe absence of special circumstances, tbe measure of damages for breach of warranty as to tbe quality or capacity of machinery sold is tbe difference between tbe contract price and tbe actual value, witb s.ucb special damages which were in contemplation of tbe parties. Critcher v. Porter, 135 N. C., 543; Kester v. Miller, 119 N. C., 475; Mfg. Co. v. Gray, 126 N. C., 108.

His Honor further charged tbe jury that tbe plaintiff would be entitled to some special damages, viz., any extra expense in having repairs done on tbe car which tbe plaintiff was induced to have done at tbe instance and request of tbe defendant, to see if tbe car could not be made to come up to tbe guarantee. We think bis Honor was correct in that charge and properly limited tbe special damages to such expenses and repairs as tbe plaintiff was induced to incur by reason of tbe representations of tbe defendant. Kester v. Miller, supra.

Upon a review of tbe whole record, we find

No error.