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the agreement was to pay the cost price of goods, the purchaser is not estopped to recover damages for the fraud of the seller in marking up the cost price, where the fact that there had been a wholesale marking up was not discovered until after payment had been made, even though said vendee discovered prior to the payment of the purchase price, that in one of two cases goods had been put in at a sum greater than the cost price, nor is the pendency of an action by a purchaser of goods for damages resulting from defects therein a bar to an action by the seller for the purchase price of the goods, where the purchase price was not interposed as an offset in the former action. So the fact that a dealer has been fully paid for an article which he sold, will not preclude a recovery by him from the party from whom he bought it, on breach of warranty, to the full extent of defects existing in it. Again, there must be deducted from damages recovered by the purchaser for breach of a warranty of a boat, the insurance money received by him on policies in the vendor's name.100

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§ 1693. Consequential, remote, uncertain and nominal damages. If goods delivered do not conform to the warranty and they are returned or offered to be returned and the vendor fails to furnish goods in conformity with the warranty, the vendee may recover such damages as may be reasonably supposed to have been contemplated by the parties when the contract was made as the probable consequences of the breach.' So it is a general rule that all damages in contemplation of the

98 Jenison Hardw. Co. v. Godkin, 112 Mich. 57; 70 N. W. 428; 3 Det. L. N. 833.

97 Welch v. Burdick, 101 Iowa, 70; | being delivered in 1898 and the case 70 N. W. 94. tried in 1900, defendants were entitled only to such credit as would have been reasonably required to make the elevator conform to the specifications at the time of delivery and not at the time of trial. Morse v. Arnfield, 15 Pa. Super. Ct. 140.

99 Western Twine Co. v. Wright, 78 N. W. 942; 11 S. D. 521; 44 L. R. A. 438; Muller v. Eno, 14 N. Y. 597; Wheelock v. Berkeley, 138 Ill. 153. Where an elevator has been put in under an express warranty, the breach of warranty can be set up as a defense to the balance due on the purchase money; but the elevator

100 Eureka Fertilizer Co. v. Baltimore Copper S. & R. Co., 78 Md. 179; 27 Atl. 1035.

1 Punteney-Mitchell Mfg. Co. v. T. G. Northwall Co. (Nev. 1902), 91 N. W. 863.

parties to a contract of sale of personal property or which may naturally result from a breach of warranty, accrue in favor of the party injured by such breach. And this rule applies generally to a special warranty where there is a breach thereof.3 And if goods are sold for a particular purpose, such damages are recoverable as flow naturally from the use of the goods for the particular purpose, but damages resulting from the use of the same for another purpose are not included. Consequential damages must, however, be specially pleaded. Again, where it is matter of common knowledge in localities where tobacco is raised, that serious loss will necessarily result if it is not cut and cured at the proper time, the manufacturer of flues for curing tobacco, and an agent who sells the same will be held to have had in contemplation at the time of the sale, the loss to the raiser of the tobacco which would result from the inability to cure it in time. In an action by the person, from whom a marine railway company purchased a warranted chain, against his vendor, for breach thereof, and the petition claims damages only for the cost of substituting a new chain and evidence as to that is admitted, proof of the damages caused such railway by the breaking of the chain and of the expense in repairing it, with loss of trade sustained thereby, is inadmissible, especially where the sale by the plaintiff to the railway company does not make him liable for consequential damages, or the defendant was not informed that he contracted to incur such liability. In another case, oats warranted as to quality were sold for feed for horses, but they contained a poisonous substance, killing some

4 Detroit White Lead Works v. Kenaszak (Buff. Super. Ct. 1895), 13 Misc. 619; 34 N. Y. Supp. 924.

2 Burr v. Redhead N. L. Co., 52 | 634; 35 Barb. 17; Milburn v. BelNeb. 617; 72 N. W. 1058. Where loni, 39 N. Y. 53, reversing S. C., 34 there was an instruction that if cer- Barb. 607; Freeman v. Chute, 3 tain fertilizers sold to defendant were Barb. 424. not as warranted the jury should find for defendant such damages as resulted "naturally" from the breach of the warranty, it is not objectionable in using the word "naturally" instead of "legitimately" or "normally." Reese v. Bates, 94 Va. 321; 26 S. E. 865; 3 Va. Law Reg. 136.

5 Omaha Coal C. & L. Co. v. Fay 37 Neb. 68; 55 N. W. 211.

6 Neal v. Pender-Hyman Hardw. Co., 122 N. C. 104; 29 S. E. 96.

7 Sutherland v. Round (C. C. App. 6th C.), 30 Ohio J. J. 372; 6 C. C.

8 Passenger v. Thorburn, 34 N. Y. A. 428; 57 Fed. 467.

of the horses, making some sick and permanently injuring others and it was decided that the value of the horses killed, the difference in the value of the injured horses before and after the injury, the loss of the use of such of the horses as were sick, the expenses of medical treatment and medicine, and such other damages as were the natural and direct consequences of such breach might be recovered. Incidental or remote damNor can probable future

ages cannot, however, be recovered. damages which are not certain, fixed or liquidated be allowed,10 but at least nominal damages will be presumed and allowed." But only nominal damages can be recovered for the breach of a parol contract for the purchase of an interest in an oil lease, where the vendors did not resell the interest contracted for by the vendee, or tender him a deed or other instrument of title therefor," although if goods are obtained by fraud or false representations, the amount of damages must be proven to recover more than nominal damages. 13

§ 1694. Special damages-Expenses, etc.-Factors in computation of damages.-Special damages, such as may arise but are not presumed by law to arise, if a proximate result of the breach of warranty, for fraud complained of, are recoverable.1 And the general rule is that damages for breach of warranty, false representations, etc., include such consequential damages as may be deemed to have been reasonably in contemplation of the parties, and which are the direct, immediate and probable result of the breach. Within this rule, damages to a cargo of fruit may be recovered for breach of warranty of speed in a charter of a vessel known by the owner to be hired for trans

8 Coyle v. Baum, 3 Okla. 659; 41 Pac. 389.

9 Huyett & Smith Mfg. Co. v. Gray, 111 N. C. 92; 15 S. E. 940; CarrollPorter, B. & T. Co. v. Columbus Mach. Co. (U. S. C. C. A. 3d C.), 55 Fed. 451. See Sweet v. Owens (Kan. App.), 57 Pac. 254.

12 Carnar v. Peters, 9 Pa. Super. Ct. 29; 43 W. N. C. 261.

13 Howell v. Bennett, 74 Hun (N. Y.), 555.

14 Short v. Matteson, 81 Iowa, 638. See Zuller v. Rogers, 7 Hun (N. Y.), 540, as to what special damages are recoverable for breach of warranty

10 F. Hammar Paint Co. v. Glover as to fitness of canal boat for naviga

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portation of fruit. And the expense of constructing shifting devices for storage batteries is recoverable as damages for breach of warranty of such batteries, where because of such breach they become worthless and useless, and but for it would have been useful and valuable.16 So the expense of cleaning the floors marred by the plaster, of removing and replacing door and window casings in order to replaster the house, and generally the cost of patching done in an attempt, though unavailing, to lessen the damages and the loss of the use of the house caused by these operations, are all recoverable where one plasters his house with cement warranted to be fit for that purpose, but which proves unsuitable and falls off." And the expense incurred by the purchaser in carting away goods which are unmerchantable may be recovered.18 So damages may include the expenses incurred, by a purchaser of bicycles for resale under a warranty that they are well made, of good material, and of the highest grade, in repairing bicycles sold by him.19 And the discomfort caused by the coldness of the house and the extra fuel required in maintaining grate fires are proper items of damage where there is a breach of a warranty that a furnace will heat the house to a given temperature. Again, a retail dealer who has sold coal to his customers in reliance upon a warranty under which he purchased, and has been obliged to refund the price and remove the coal because of its failure to comply with such warranty, may recover the expense of delivering and removing the coal as part of his damages for breach of the warranty." So for breach of warranty of quality on a sale of paint, the purchaser may recover a certain fixed, or liquidated sum which he has incurred a legal liability to pay to or expend for another for whom he did work with the paint, in order to relieve him

15 The Ceres (C. C. App. 2d C.), 38 | U. S. App. 441; 72 Fed. 936.

16 Accumulator Co. v. Dubuque St. R. Co. (C. C. App. 8th C.), 12 C. C. A. 37; 64 Fed. 70.

18 Reuben v. Lewis (Sup. Ct. App. Term), 20 Misc. 583; 46 N. Y. Supp. 426.

19 Burr v. Redhead N. L. Co., 52 Neb. 617; 72 N. W. 1058.

20 Tower v. Pauly, 67 Mo. App.

17 Nye & S. Co. v. Snyder, 56 Neb. 754; 77 N. W. 118, citing Hadley v. 632. Baxendale, 9 Exch. 341. But see next section following.

21 Hodgman v. State Line & S. R. Co., 45 Ill. App. 395.

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self of the effects of its bad quality although the amount has not been paid." But generally the plaintiff cannot, in the absence of evidence of other damage, recover more than what it would, according to the uncontradicted evidence, cost to repair the defect complained of. Again, the buyer is entitled to interest on the price of the goods paid at time of delivery." So an instruction, in an action for the price of staves, claimed to have been worthless, that the only damage that the court can see is the freight paid on the worthless staves, is erroneous where there is evidence that the defendant had been damaged on account of their inferiority in a certain sum of money. And although the amount paid for freight or other expenses in replacing defective pulleys with good ones is not definitely shown, yet, as the jury was authorized to infer that some amount was so paid, the verdict will not be disturbed because something was allowed on that account where the seller stipulated to remove and replace them and pay all reasonable cost therefor if they failed to do the work and they did so fail. So in an action for the breach of a warranty that the signature of an indorser on a note transferred to the plaintiff, by the defendant, was genuine, the plaintiff may be entitled to recover, as a part of his damages, the cost incurred by him in an unsuccessful suit against the supposed indorser, where such suit is brought in good faith and without knowledge of the forgery, and the measure of damages in such case is the difference between the amount of the note and its actual value. Again, stevedores who have paid an employee for injuries sustained by reason of a defect in a chain used in his employment, which might have been discovered by them by the exercise of reasonable care, may recover over against a shipowner, who agreed to supply all necessary and proper chains for discharging the cargo, as the injury to such employee is the natural consequence of the breach of such agreement and

22 F. Hammar Paint Co. v. Glover, 47 Kan. 15; 27 Pac. 130.

28 Lockwood v. Dewey, 60 N. Y. Supp. 471.

24 South Bend Pulley Co. v. W. E. Caldwell Co. (Ky. App. 1899), 54 S. W. 12.

25 Anniston Lime & C. Co. v. Lewis, 107 Ala. 535; 18 So. 326.

26 South Bend Pulley Co. v. W. E. Caldwell Co. (Ky. App. 1889), 54 S. W. 12.

27 Coolidge v. Brigham, 1 Metc. (Mass.) 547.

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