And if he obtains the goods from some other source below the market price, his damages will be the difference between the contract price and that which he paid.1 § 11. Damages for Breach of Warranty. 351. Thus far we have been considering the measure of the buyer's damages for a breach by the seller of an essential term of the contract in cases where the buyer has not taken title to the goods. If, notwithstanding such a breach by the seller, the buyer accepts the goods, he cannot reject them thereafter, but, having waived the operation of the essential term as a condition, is now limited to a claim for damages, precisely as he would have been had this engagement been from the first a collateral agreement or warranty in its narrow sense.2 352. General Principles. - The ordinary measure of damages for a breach of warranty is "the difference between the actual value of the article sold and the value of the same article if it had been such as the vendor warranted it to be." 3 If the contract price is less than the fair value, the buyer "is entitled to the benefit of the contract." And if he resells the property, though without a warranty on his part, the price which he receives does not fix the amount of his damages; 5 at most, it affords evidence of the real value of the property. When the property is worthless, he recovers the whole price, 1 Arnold v. Blabon, 147 Pa. 372; 23 At. 375 (1892); Theiss v. Weiss, 166 Pa. 9; 31 At. 63 (1895); Burton v. Miller, 227 Pa. 143; 75 At. 1035 (1909). In this case the buyer substituted goods which he had previously bought at a price below the market at time of seller's breach. Supra, ¶ 143; Campbell on Sales (2d ed.), 510, 511. Brown v. Bigelow, 10 Allen (92 Mass.), 242 (1865); Western Twine Co. v. Wright, 78 N. W. 942; 11 S. D. 521; 44 L. R. A. 438 (1899); Mair v. Williams, - S. D. —; 136 N. W. 1086 (1912); Hardie-Tynes Mnfg. Co. v. Easton Cotton Oil Co., 150 N. C. 150; 63 S. E. 676 (1909). Brooks v. Clark, 60 Vt. 551, 553 (1888); Murray v. Jennings, 42 Conn. 9; 19 Am. R. 527 (1875). 5 Case Plow Works v. Niles, 90 Wis. 590, 606; 63 N. W. 1013 (1895); Andrews v. Schreiber, 93 Fed. 367 (1899); McChatchey v. Anderson, 84 Neb. 783; 122 N. W. 67 (1909); Ellison v. Johnson, 74 S. C. 202; 54 S. E. 202; 5 L. R. A. N. s. 1151 (1906) and case note. Bach v. Levy, 101 N. Y. 511; 5 N. E. 345 (1886); George v. Lane, 80 Kan. 94, 98; 102 Pac. 55 (1909). if he has paid it:1 and, if he has paid nothing, is relieved from all liability for the price.2 When the warranty is confined to the capacity of a machine, and there is no machine on the market of such capacity, the measure of damages for the seller's breach, it has been held, is not the difference between the value of the machine, had it been as warranted, and the one delivered, but the difference between the price and the real value of the machine as delivered.3 The vendor of warranted articles cannot successfully defend an action for damages by showing that the article was destroyed by natural causes; e. g., that fruit trees, warranted to be of certain varieties, were injured or killed by severe cold weather.1 The right of action for breach of warranty of soundness accrues as soon as the contract is made, if the article is then unsound, and the statute of limitations runs from such date.5 353. Special Damages. The general principles which are applicable to special damages for the breach of an essential term of the contract, and which have been presented in the last preceding section, govern this species of damages for the breach of a warranty. Accordingly, if coal is sold with a warranty by one knowing that the buyer is purchasing for the purpose of reselling it as coal of the warranted description, the first buyer's damages may include the costs of an action unsuccessfully defended by him for a breach of his sub-warranty. If seed is sold to a market-gardener, and warranted to be Bristol cabbage seed, when it is not, the buyer may recover as damages "the difference in value between the crop raised from the defective seed and a crop of Bristol cabbage, such as would ordinarily have been produced in the year in which the seed was sown.' 7 If 1 Leavell v. Coleman, 144 Ky. 825; 139 S. W. 1079 (1911). 2 Swift & Co. v. Redhead, 147 Ia. 94; 122 N. W. 140 (1910). Huyett-Smith Mnfg. Co. v. Gray, 129 N. C. 438; 40 S. E. 178; 57 L. R. A. 198 (1901). Heilman v. Pruyn, 122 Mich. 301; 81 N. W. 97 (1899). Woodland Oil Co. v. Byers & Co., 223 Pa. 241, 245; 72 At. 518 (1908). 7 White v. Miller, 71 N. Y. 118, 132 (1877); cf. Wolcott v. Mount, 36 N. J. L. 262 (1873); Burdick's Cases on Sales, 300; Wagstaff v. Short a dealer in bulbs engages to supply a floriculturist with longiflorum lily bulbs true to name, and furnishes bulbs which turn out to be of an inferior variety, he is liable in damages for "the difference between the value of the crop raised and a crop of longiflorums." So, if the seller of a plant warrants it to be a white orchid, but, upon flowering two years later, it proves to be an ordinary purple orchid, the buyer may recover as special damages the difference between its value as a purple orchid, and its value if it had flowered white.2 The amount which he paid for the plant is no criterion of his loss. Damages for personal injuries sustained by the buyer, or those in privity with him, due to defects in the article warranted against, are recoverable.3 354. Fruit Trees. A landowner who buys fruit trees of warranted varieties is entitled to special damages if the warranty is broken. Those damages are not measured by the price paid for the trees, the cost of setting out and caring for them, and the use of the land which they occupied, but by the difference in the value of the land with the trees which were furnished, and its value with the trees which were contracted for. 355. Diseased Animals; Poisonous Substances. Again, a seller of diseased animals, with a warranty of soundness, is liable for all the loss sustained by the buyer which was the natural and probable result of the breach. One who sells diseased cows or horses or sheep," with a warranty of soundhorn Dairy Co., 1 C. & E. 324 (1885); Malone v. Hastings, 193 Fed. 1; 113 C. C. A. 329 (1912). 1 Edgar v. Breck & Sons Corp., 172 Mass. 581; 52 N. E. 1083 (1899); Burdick's Cases on Sales, 716. 2 Ashworth v. Wells, 14 L. T. R. 227 (1898). Plaintiff paid 20 guineas. Had the orchid flowered white, it would have been worth 100 guineas. Flowering purple, it was worth 78. 6d. Tyler v. Moody, 111 Ky. 191; 63 S. W. 433; 54 L. R. A. 417; 98 Am. St. R. 406 (1901); Boston W. H. & R. Co. v. Kendall, 178 Mass. 232; 51 L. R. A. 781; 86 Am. St. R. 478; 59 N. E. 657 (1901). Contra: Birdsinger v. McCormick H. M. Co., 183 N. Y. 487; 76 N. E. 611; 3 L. R. A. N. s. 1047 (1906) and case note. And see Edge M. I. Co. v. Brown H. M. Co., 6 Pennewell (Del.), 10; 62 At. 1054 (1906). Heilman v. Pruyn, 122 Mich. 301; 81 N. W. 97 (1899). Smith v. Green, 1 C. P. D. 92 (1875); Sherrod v. Langdon, 21 Ia. 519 (1886); Joy v. Bitzer, 77 Ia. 73, 80; 41 N. W. 575 (1889); Larson v. Calder, 16 N. D. 248; 113 N. W. 103 (1907). ness, to a farmer, who may be expected to put them with other animals, may be liable in damages not only for the difference between the value of the animals with the disease and their value if sound, but also for the injury to other animals with which they were placed. And if oats are sold, with a warranty of fitness for use, to an owner of horses, but which contain a mixture of seeds harmful to horses, the seller may be subject to an extensive liability to the buyer for the value of the horses which died, for the injury to those which survived, for the value of their use while sick, and for expenses incurred in doctoring and caring for them.1 356. Profits as Special Damages. - Profits which the buyer can establish with reasonable certainty he would have made had the warranted article conformed to the sale contract, may be recovered if the facts show that such profits should have been within the contemplation of the parties when the contract was entered into.2 The manufacturer of a refrigerator, who warrants that it will "keep chickens for the early spring market," will be liable, not only for the difference between the value of the refrigerator as furnished and its value had it conformed to the contract, but to the spring-market value of the chickens, which were lost because of its defects, less the cost of getting them to market and the expenses of selling them.3 § 12. Interest as Damages. 357. In England the buyer is rarely entitled to recover interest upon his principal claim for damages. The "state of the law in this country upon the subject is uncertain." 5 It 1 Coyle v. Baum, 3 Okla. 695; 41 Pac. 389 (1895); Burdick's Cases on Sales, 560; W. T. Adams Machine Co. v. Castleberry, 92 Ark. 310; 122 S. W. 998 (1909); Swift & Co. v. Redhead, 147 Ia. 94, 103; 122 N. W. 140 (1910). If the seller of a warranted but unsound animal tells buyer to keep it and give it attention, the expenses of such keep and attention are recoverable. Leavell v. Coleman, 144 Ky. 825; 139 S. W. 1079 (1911). 2 For a case where alleged profits are not allowable see Sapp v. Bradfield, 137 Ky. 308; 125 S. W. 721; 136 Am. St. R. 291 (1910). 3 Beeman v. Banta, 118 N. Y. 538; 23 N. E. 887 (1890). 4 Brown, Sale of Goods Act (1st ed.), 236, 237; 3 & 4 Will. IV. sh. 42, White v. Miller, 78 N. Y. at p. 395 (1879). appears, however, to be the prevailing view that the buyer is entitled to interest on whatever of his principal claim can be treated as liquidated, to be reckoned from the date of the seller's breach or default; and that damages will be treated as liquidated when they can be "determined by computation simply, or by reference to market values." But if the claim is unliquidated, as in the case of damages sustained by a purchaser who has bought and planted spurious cabbage seed, which was warranted to be "Bristol cabbage seed," interest cannot be set running either by a demand for damages, or by the commencement of an action therefor.2 This doctrine was applied in a recent New York case, cited on a previous page, where it was held by a divided court, that as the property in question did not have a fixed market value, the buyer was not entitled to interest on the sum awarded as damages. 358. A Different Rule in some States. The doctrine has been rejected by some courts which have allowed interest, even though the property did not possess a fixed market value. For example, the buyer of a stallion, warranted to be "a first-class foal getter," but which was practically worthless as a breeder, was held entitled to interest, from the date of sale to the date of trial of the case, on the damages assessed by the jury. "In such cases," according to the Supreme Court of Wisconsin,5 "interest is not allowed as such, but simply as compensation for the delay, and in order that the plaintiff may be fully remunerated for his injury. In such cases interest is regarded, in the absence of special circumstances showing greater loss, as measuring the proper compensation for the delay which the plaintiff has suffered in waiting for the payment of his damages; the principle being that the plaintiff will not be fully compensated unless he receive, not only the value of the thing lost, but 1 White . Miller, 71 N. Y. at p. 134 (1877); Gray v. Hall, 29 Kan. 704 (1883); Thomas v. Wells, 140 Mass. 517; 5 N. E. 485 (1885); Parks v. Elmore, 59 Wash. 584; 110 Pac. 381 (1910). 2 White v. Miller, 78 N. Y. 393 (1879). 3 Sloan v. Baird, 162 N. Y. 327; 56 N. E. 752 (1900); supra, ¶ 339. Brown v. Doyle, 69 Minn. 543; 72 N. W. 814 (1897). 5 J. I. Case Plow Works v. Nile & Scott Co. (Wis.), 82 N. W. 568 (1900); Burdick's Cases on Sales, 718. Accord: Kuhn v. McKay, 7 Wy. 42; 51 Pac. 205 (1897). |