If the title of the vendor is defective, and the real owner claims the goods, the buyer may recover damages for breach of warranty of title. Here the measure of damages would be for the actual loss sustained.3

1 Brackett vs. Edgerton, 14 Minn., 174.

2 Penn. vs. Smith, 104 Ala., 445. 3 Sedgwick on Damages, Sec. 294.

A breach of warranty of title can hardly take place until the purchaser is disturbed by reason of the outstanding title and no suit ordinarily lies until the buyer suffers damages because of the breach.4

The breach of warranty may be of a warranty of something other than the title; if so, the buyer may sue for the actual loss he has sustained. If the article delivered was of no value, then the entire amount paid by the purchaser could be recovered. The buyer may recover for breach of warranty even though he has not made payment of purchase. This is true unless the contract by its terms makes payment a condition precedent.

The buyer may recover on a breach of warranty, even though the value of the goods afterward increase in value, so that on a re-sale of the goods, the buyer makes a profit. The buyer is always entitled to any possible profits, as he must also bear the losses of the venture. So, even if on re-sale a profit was made where a warranty in reference to the goods failed, in theory at least, the profit is less than it would have been in case the warranty was not broken.

Where the buyer is sued for the purchase price, he may defend by way of recoupment, by showing the representations of the seller were not fulfilled by which he has sustained an injury.5