The opinion
Gray, J.
The objections that either the joinder of a count in contract with the count in tort, or the certificate of discharge in bankruptcy, would defeat the plaintiff’s right of action in tort for the defendant’s false and fraudulent representations, were hardly relied on at the argument, and are groundless. Gen. Sts. c. 129, § 2, cl. 5. Crafts v. Belden, 99 Mass. 535 . U. S. St. 1867, c. 176, § 33.
*440 The rule of damages was rightly stated to the jury. It is now well settled that, in actions for deceit or breach of warranty, the measure of damages is the difference between the actual value of the property at the time of the purchase, and its value if the property had been what it was represented or warranted to be. Stiles v. White, 11 Met. 356 . Tuttle v. Brown, 4 Gray, 457 . Whitmore v. South Boston Iron Co. 2 Allen, 52. Fisk v. Hicks, 11 Foster, 535 . Woodward v. Thacher, 21 Verm. 580 . Muller v Eno, 4 Kernan, 597. Sherwood v. Sutton, 5 Mason, 1 . Loder v. Kekulé, 3 C. B. (N. S.) 128. Dingle v. Hare, 7 C. B. (N. S.) 145. Jones v. Just, Law Rep. 3 Q. B. 197. This is the only rule which will give the purchaser adequate damages for not having the thing which the defendant undertook to sell him. To allow to the plaintiff (as the learned counsel for the defendant argued in this case) only the difference between the real value of the property and the price which be was induced to pay for it would be to make any advantage lawfully secured to the innocent purchaser in the original bargain inure to the benefit of the wrongdoer; and, in proportion as the original price was low, would afford a protection to the party who bad broken, at the expense of the party who was ready to abide by, the terms of the contract. The fact that the property sold was of such a character as to make it difficult to ascertain with exactness what its value would have been if it had conformed to the contract affords no reason for exempting the defendant from any part of the direct consequences of his fraud. And the value may be estimated as easily in this action as in an action against him for an entire refusal to perform his contract.
Exceptions overruled.