The vendee, in some instances, confiding in the warranty, is subjected to indirect or consequential loss. And the recovery of such consequential loss will depend on the general principles which we have heretofore examined. So where a slave was sold with warranty of soundness, and two months afterwards received a gunshot wound and died, and it was proved that he had labored under a chronic affection of the lungs at the time of the sale, and but for that disease the wound would not have proved mortal; it was held, notwithstanding, that the vendor was liable only for the diminution of his value at the time of the sale in consequence of the disease, and not for the combined consequences of the wound and the disease.1** In Randall v. Newson,(*) the plaintiff had bought of the defendant a pole for his carriage. In driving, the horses swerved and the pole broke short off at the carriage. The horses became restive and were injured. The court below had refused to allow damages for this injury. In Banc this was held to be error, the court saying: "We think that a question should have been left to the jury similar to that which was left in Smith v. Green,() namely, whether the injury to the horses was or was not a natural consequence of the defect in the pole." In Zuller v. Rogers () it was held that for breach of warranty of the soundness of a canal-boat, the plaintiff was liable not only for the difference in value, but also for special damages sustained by reason of delays, loss of time, and other injury suffered unavoidably on the first trip before the defects were discovered. Where plaintiff was to take care of sheep for half the wool and half the lambs, defendant 1 Marshall v. Gantt, 15 Ala. 682. (*) 2 Q. B. D. 102, 111. () 1 C. P. D. 92; cited infra, § 769. §766. UPON WARRANTY OF fitness for a purpose. 479 falsely representing that they were in good condition, and many died from disease, the measure of damages was held to be the cost of taking care of them and the value of the time spent, less the profits made under the contract. (*) Where a boiler, warranted sound, exploded and injured the plaintiff's mill, it was held that the rental value of the mill during the necessary repairs might be recovered. (b) Where white-lead had been spilled on the defendant's hay, and he had partially separated the poisoned hay from the rest, and wrongly supposed he had done so completely, and under this impression sold some of the remaining hay to the plaintiff, and the plaintiff's cow died from eating the hay, it was held that the defendant was liable, and that the rule of damages was the value of the cow.(*) We proceed to consider some of the more common instances of the allowance of consequential damages. § 766. Upon warranty of fitness for a purpose.-Where an article is warranted fit for a particular purpose, the purchaser can recover the damages caused by an attempt to use it for that purpose.(d) This sometimes gives a larger measure of recovery than would be allowed under the ordinary rule. Where the chattel sold has different values, according to the use for which it is intended, the value which measures the damage is that which the vendor represented it to have with reference to the purpose to which he knew it was to be applied by the vendee. So where oxen purchased for work, and represented sound, (*) Parker v. Marquis, 64 Mo. 38. () Sinker v. Kidder, 123 Ind. 528. (c) French v. Vining, 102 Mass. 132; acc. Wilson v. Dunville, 6 L. R. Ir. 210. (4) McLennan v. Ohmen, 75 Cal. 558; Fox v. Stockton C. H. & A. Works, 83 Cal. 333; Cochran v. Jones, 11 S. E. Rep. 811 (Ga.). This rule has been held not to authorize a recovery of the value of goods stolen from a safe warranted burglar-proof; Herring v. Skaggs, 62 Ala. 180. proved unsound, and by reason of the unsoundness were worth ten dollars less for beef and twenty-five dollars for work, the larger sum was held to be the measure. (*) And where oxen sold were warranted easily yoked by an old man, and were not, the measure of damages is the diference between the value of oxen as warranted and the value of the oxen sold. (b) So where a refrigerator was warranted to keep chickens frozen for market, the measure of damages was the diminished value of the refrigerator, and the value of chickens lost, reckoned at their value in the market at the time to which the refrigerator was warranted to keep them, less the expense of reaching market and selling. () Where coloring matter purchased for the purpose of coloring ice-cream by a manufacturer of that article proved to be poisonous, the purchaser was allowed to recover the value of the ice-cream lost through the use of the poisonous coloring matter, and also compensation for injury to business.(4) Where steel sold proved to be of an inferior description to what it was warranted to be, the purchaser, having used the steel in the manufacture of axes, was allowed to recover the difference between the value of these axes and that of axes made of the quality of steel this was described to be. The court stated that the reason of these decisions was that the plaintiff could not have discovered the defect before the axes were manufactured, and therefore could not replace himself till then.(°) Where varnish was warranted fit to varnish wood mouldings, and upon being used for that purpose proved to be (a) Ladd v. Lord, 36 Vt. 194. () Wing v. Chapman, 49 Vt. 33. (4) Swain v. Schieffelin, 12 N. Y. Suppl. 155. (*) Parks v. Morris A. & T. Co., 54 N. Y. 586; acc. Milburn v. Belloni, 39 N. Y. 53. § 767. UPON WARRANTY OF MACHINES. 481 of an inferior sort, the measure of damages was held to be the difference in value of the mouldings varnished as they should have been and as they were. (*) In any case actual loss may be recovered. On breach of warranty of steel furnished for manufacturing into vises, the measure of damages is the cost of the labor and material wasted, with interest. (b) In case of warranty of steel springs sold to manufacture carriages, the purchaser may recover the expense of taking defective springs out of carriages manufactured and replacing them by new ones. (©) § 767. Upon warranty of machines.-Under the foregoing head would properly come cases of warranty of machines. Where a machine turned out not to be what it was warranted, it was held that the plaintiffs could not recover for profits lost during the time which was required to put it in the condition it was warranted to be.(4) So in an action for breach of a contract to construct and set up, within a specified time, engines on a steamboat of a stipulated quality and power; where it proved that the engines were not delivered within the time fixed by the contract, and did not conform to it, the measure of the plaintiff's damages was held to be the difference between the machinery furnished and that called for by the contract, together with expenses actually incurred by the plaintiff as a consequence of the breach, which would include the wages of the officers and crew while they remained idle during the delay in furnishing the machinery, and such reasonable further time as was consumed in testing and repairing it, or procuring other machinery in (*) Moore v. King, 57 Hun 224. () Bagley v. Cleveland R. M. Co., 22 Blatch. 342. () Thoms v. Dingley, 70 Me. 100. (4) Booher v. Goldsborough, 44 Ind. 490. VOL. II.-31 stead, to which might be added interest.(*) McCormick v. Vanatta () was an action for breach of a warranty that a reaping and mowing machine would reap and rake small grain or flax, in all conditions, as well as it could be done by hand. The vendee claimed to recover for loss of part of his crop by a delay which was due to defects in the machine sold. The court refused to give such damages, holding that such a consequence was too remote, and saying that the true measure of damages was the difference in the value of the machine as it was and as it should have been. But if it had been within the contemplation of the parties at the time of the contract that it would be impracticable to procure another machine to do the work and save the crop, it has been intimated that the loss would be recoverable.() Where the warranted machine was bought for the manufacture of cotton-seed oil, the plaintiff may recover the deterioration in value of cotton-seed bought to run in the machine.() 768. Of seeds. We have already discussed the cases turning upon warranty of seeds, and shown how they illustrate the principles of consequential damages.(*) It is not necessary to do more than summarize the results here. Where seed is warranted to be of a certain quality and turns out to be of an inferior quality, the purchaser is not (where the seed grows, and produces a crop) confined to the difference between the price of seed of one quality and that of the other. He has been allowed to recover the difference between the value of a crop produced by the seed delivered and the value a crop produced by other (*) Fisk v. Tank, 12 Wis. 276. () 43 Ia. 389; acc. Frohreich v. Gammon, 28 Minn. 476; Wilson v. Reedy, 32 Minn. 256. (c) Frohreich v. Gammon, 28 Minn. 476. |