#### H. M. PRITCHARD vs. C. J. FOX.

A warranty on the sale of a soda-fountain, that it was in good condition, is broken, if, from an inherent defect in its construction, existing at the time of the sale, it was liable to get out of order, from time to time, and from that *141cause failed to answer the purposes for which it was designed, although it was in a condition to make good soda-water on the day of sale.

The measure of damages in such a case is the difference in the value of the article, provided it had been in good condition, and its value as it was in ita then state.

ActioN of assumpsit for the breach of warranty, tried before Bailey, Judge, at a Special Term, (June, 1856,) of Meck-lenburg Superior Court.

The plaintiff offered as evidence of the contract between the parties, a paper-writing, as follows: “ September 12th, 1853. Know all men by these presents that I have this day sold to IT. M. Pritchard, a soda-fountain and fixtures, represented to be in good condition,, which good condition I warrant. In witness, &c.” Signed without a seal by the defendant.

Plaintiff introduced evidence, tending to show that the soda-fountain, sold to him by the defendant, was not in good condition on the day of the sale, and that it was not adapted to the purposes for which it was intended.

The defendant offered evidence tending to show, not only that the machine in question was in good condition on the day ©f sale, but that there was no material defect in its construction, and he called upon the Court to instruct the j ury, that if the soda-fountain -was in good condition on the day of sale, and would make good soda-water on that day, the warranty w.as not broken, and that if it had got out of order, the measure' of the plaintiff’s damages would be the costs of reparation.

The- Court charged the jury, that the warranty extended, not only to the state of the soda-fountain on the day of sale, but that it was a warranty that it should answer the purposes for which it was intended; and that although it was in good condition, and made good soda-water on ■ the day -when the plaintiff purchased it, yet if it was liable to get out of order, from time to time, by reason of some defect in the instrument itself, which existed at the time of the sale, and thereby ren*142dered it unfit for the uses for which it was designed, then there would be a breach of the warranty, and the measure of the plaintiff’s damages would be the difference between the value of the article, if it had been in good condition, and the actual value of it in its then state. Defendant excepted.

Verdict for the plaintiff. Judgment and appeal by the defendant.

Osborne, for the plaintiff.

Wilson and Boyden, for the defendant.

Nash, C. J.

The question presented is as to the correctness of the Judge’s charge. The action is for the breach of a warranty in the sale of a soda-fountain. The contract is in writing. After stating the sale of the fountain and fixtures, It says, “represented to be in good condition, which good condition I warrant.”

The defense was, that the soda-fountain was in good condition on the day of the sale, and that there was no material defect in its construction; and that if the fountain was in good condition on the day of the sale, and would make good soda-water on that day, the warranty was not broken, and that if it got out of order, the measure of the plaintiff’s damages was the cost of repairs.

His Honor’s charge was, we think, correct. He informed the jury that the warranty was not confined to the day of the sale, but that it extended beyond it, and that in effect it extended to the future usefulness, for the purpose for which it was intended; that though it might have been in good condition on the day of the sale, and on that day made good soda-water, yet, if it was liable to get out of order, from time to time, by reason of some defect in the instrument itself, which existed at the time of the sale, and thereby rendered it unfit for the uses for which it was designed, the warranty was broken.

The defendant insisted that, if the fountain was in good condition on the day of sale, there was no breach of the warranty. There is an old maxim, “ gui hceret in litera hceretin *143cortioe.” What was tbe understanding of tbe parties at tbe time of tbe sale ? Eor wbat purpose did tbe plaintiff buy tbe fountain, or tbe defendant sell it? Was it to make soda-water for a day ? Certainly not; but with tbe expectation and belief that it would last some time at least beyond that day. Tbe jury were instructed that, if from some inherent defect in the fountain, existing at tbe time of tbe sale, it was useless for the purposes for which it was intended, the- warranty waB broken. Can there be any doubt that the law is so ? A sells to B a horse, knowing well the use for which B buys him, and warrants him to be a safe horse in harness. For a few days the horse works very gently, but in a short time runs away with the carriage and breaks it. A is sued for a breach of warranty, but his reply is, I only warranted him to be gentle on the day of the sale, and on that day he worked gently. Would that defense avail, him? Surely not. The reply of B would be, “ I bought him from yon as a gentle, well-broke horse, and intended him not only for present, but future use. The fact, that he afterwards ran away' and broke the carriage, is evidence that the defect existed at the time of the sale.” So, here, if the defect in the fountain was inherent in the thing itself, either as to material or workmanship, not casual, but rendering it useless, the defect was in existence at the time of the sale, and the warranty was broken. It is sufficient, in pleading, to set forth the substance of the contract, and of course to prove it. l'Phil. on Ev. 208, 209.

Upon the question of damages, his Honor was correct in stating the law. If the article was useless for the purpose for which it was intended, the measure of damages was as charged. • If the machine, by accident, got out of order, and was easily repaired, it would have been the duty of the plaintiff to repair it, and not seek to throw the fountain on the defendant ; but where the defect is inherent in the machine, the expense of keeping it in order might, in time, exceed the price given for it.

This being a matter of construction of an express warranty, *144we are satisfied, that the proper one was placed upon it by his Honor.

Pee Cukiam. Judgment affirmed.