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On the other hand, though authorized to bind his principal, an agent may pledge his own responsibility, and thus become personally liable. And if he warrants without authority, or assumes to represent a principal having no legal existence,3 he is also personally liable. In tort the principal and agent may both be liable.1

A full discussion of this subject has been given in another work, and need not be repeated here.

$ 1816.

Purchaser of draft with bill of lading attached. Where the seller of warranted goods ships them by carrier, taking a bill of lading in his own name, attaches to the bill of lading a draft drawn on the purchaser for the price, and then procures the discount of the draft by a transfer of the bill of lading, the bank or other party discounting the draft obtains a legal title to the goods, and, it has been held, becomes liable for the performance of the warranty subject to which the goods were sold."

This doctrine, however, has been denied, and is thought not to be in accord with the established rules of law."

§ 1817. Measure of damages for breach of warranty — In general. Where the article furnished by the seller is not such in kind, quality or condition as it was expressly or impliedly warranted to be, the direct and natural loss to the buyer who keeps it is obviously the difference between the value of an article of the kind he was thus entitled to receive and the value

1 See Mechem on Agency, § 552 et Alpha Mills v. Watertown Co. (1895), seq. 116 N. C. 797, 21 S. E. R. 917.

2 See Mechem on Agency, § 541 et seq.

3 See Mechem on Agency, § 557. 4 See Mechem on Agency, § 182. Where a person, acting as agent for another, contracted to sell plaintiff an engine of a certain kind, and knowingly delivered an inferior one, plaintiff may retain the engine and sue both principal and agent for damages on the false warranty.

5 Landa v. Lattin (1898), 19 Tex. Civ. App. 246, 46 S. W. R. 48; Finch v. Gregg (1900), 126 N. C. 176, 35 S. E. R. 251, 49 L. R. A. 679, and exhaustive note.

6 Tolerton & Stetson Co. v. AngloCalifornia Bank (1901), Iowa, 84 N. W. R. 930, 50 L. R. A. 777.

7 See note to Finch v. Gregg, in 49 L. R. A. 679.

of the article which he has in fact received. For this loss he is entitled to compensation. There may, of course, be other losses resulting from the seller's default, and these will be considered later; but the direct and immediate loss will be at least this difference in value.

For the breach of warranty, then, as to kind, quality or condition, the measure of the buyer's injury will be the difference between the value of an article of the kind warranted and the value of the article actually delivered; and for this difference the buyer may recover damages. If the article delivered is

1 Case Plow Works v. Niles (1895), 90 Wis. 590, 63 N. W. R. 1013 [citing Giffert v. West, 33 Wis. 617; Merrill v. Nightingale, 39 Wis. 247; Aultman v. Hetherington, 42 Wis. 622; Ault man v. Case, 68 Wis. 612]; Park v. Richardson (1895), 91 Wis. 189, 64 N. W. R. 859; Crane Co. v. Columbus Constr. Co. (1896), 46 U. S. App. 52, 20 C. C. A. 233, 73 Fed. R. 984; Moore Furniture Co. v. Sloane (1897), 166 Ill. 457, 46 N. E. R. 1128; Thoms v. Dingley (1879), 70 Me. 100, 35 Am. R. 310; Freyman v. Knecht (1875), 78 Pa. St. 141; Ogden v. Beatty (1890), 137 Pa. St. 197, 20 Atl. R. 620, 21 Am. St. R. 862; Shearer v. Park Nursery Co. (1894), 103 Cal. 415, 37 Pac. R. 412, 42 Am. St. R. 125; Berry v. Shannon (1896), 98 Ga. 459, 25 S. E. R. 514, 58 Am. St. R. 313; Meyer v. Green (1898), 21 Ind. App. 138, 69 Am. St. R. 344; Cary v. Gruman (1843), 4 Hill (N. Y.), 625, 40 Am. Dec. 299, and note; Voorhees v. Earl (1842), 2 Hill (N. Y.), 288, 38 Am. Dec. 588; Passinger v. Thorburn (1866), 34 N. Y. 634, 90 Am. Dec. 753; Hooper v. Story (1898), 155 N. Y. 171, 49 N. E. R. 773; Lewis v. Rountree (1878), 79 N. C. 122, 28 Am. R. 309; Case Threshing M. Co. v. Haven (1884), 65 Iowa, 359, 21 N. W. R. 677; Douglass v. Moses (1896), 89 Iowa, 40, 65 N. W. R. 1004; Porter v. Pool (1879), 62 Ga. 238; Rutan v. Ludlam

(1862), 29 N. J. L. 398; Wheeler & Wilson Mfg. Co. v. Thompson (1885), 33 Kan. 491, 6 Pac. R. 902; Weybrich v. Harris (1883), 31 Kan. 92; St. Anthony Lumber Co. v. Bardwell-Robinson Co. (1895), 60 Minn. 199, 62 N. W. R. 274; Merrick v. Wiltse (1887), 37 Minn. 41, 33 N. W. R. 3; Sharpe v. Bettis (1895),

Ky. --- 32 S. W. R.

395; Reese v. Miles (1897), 99 Tenn. 398, 41 S. W. R. 1065; Nashua Iron & Steel Co. v. Brush (1898), 50 U. S. App. 461, 33 C. C. A. 456, 91 Fed. R. 213; Western Twine Co. v. Wright (1899), 11 S. Dak. 521, 78 N. W. R. 942, 44 L. R. A. 438. It is, indeed, often said that the measure of damages in these cases is the difference between the price paid and the actual value (Huyett & Smith Mfg. Co. v. Gray (1899), 124 N. C. 322, 32 S. E. R. 718; Courtney v. Boswell (1877), 65 Mo. 196; Thornton v. Thompson (1847), 4 Gratt. (Va.) 121; Boyles v. Overby (1854), 11 Gratt. 202; Van Winkle v. Wilkins (1888), 81 Ga. 93, 7 S. E. R. 644, 12 Am. St. R. 299); but this is erroneous. Park v. Richardson (1895), 91 Wis. 189, 64 N. W. R. 859; Clare v. Maynard (1837), 7 Car. & P. 741, 32 Eng. Com. L. 713; Loder v. Kekule (1857), 3 Com. B. (N. S.) 128, 91 Eng. Com. L. 126; Jones v. Just (1868), L. R. 3 Q. B. 197.

wholly worthless, then the entire value of such an article as this was warranted to be could be recovered.1

§ 1818. Of the value of the article as it should be, the price agreed to be paid is not conclusive evidence, though it may have some tendency to establish it. To make it conclusive, however, would be to deprive the buyer of the benefit of his bargain. The same is true of the value of the article to be given in payment where the price was to be paid in goods or there was to be an exchange.3

So, on the other hand, it is said that "the price for which the purchaser had sold the goods cannot be shown in order to modify the rule, nor is it material whether he has sold them at all."4

The fact that the article was worth the price is immaterial if it would have been worth more had it been as warranted."

§ 1819. Time.- This difference in values which forms the measure of the buyer's damages is usually to be estimated as of the time of delivery agreed upon. There may be and are cases, however, in which the defect is not discoverable at the time of the delivery and cannot in the ordinary course of events be ascertained until a later period at which their real value, as contemplated by the parties, is to be manifested. Thus where young fruit trees were sold warranted to be of a certain variety,

1 Reggio v. Braggiotti (1851), 7 v. Watson, 6 Metc. 246; Brown v. Cush. (Mass.) 166.

2 Carr v. Moore (1860), 41 N. H. 131; Street v. Chapman (1867), 29 Ind. 142; Aultman v. Hetherington (1877), 42 Wis. 622; Case Plow Works v. Niles, supra. In the absence of any showing to the contrary it may be regarded as the value. Seigworth v. Leffel (1874), 76 Pa. St. 476.

Bigelow, 10 Allen, 242; Bach v. Levy, 101 N. Y. 511; Jones v. Just, L. R. 3 Q. B. 197]; Andrews v. Schreiber (1899), 93 Fed. R. 367 [citing further, Cordage Co. v. Wohlhuter, 71 Minn. 484, 74 N. W. R. 175; Brown v. Emerson, 66 Mo. App. 63; Wheelock v. Berkeley, 138 Ill. 153, 27 N. E. R. 942]. 5 Douglass v. Moses (1896), 89 Iowa,

3 Rutan v. Ludlam (1862), 29 N. J. L. 40, 65 N. W. R. 1004. 398.

4 Case Plow Works v. Niles (1895), 90 Wis. 590, 63 N. W. R. 1013 [citing Muller v. Eno, 14 N. Y. 597; Medbury

6 Eagle Iron Works v. Des Moines Suburban Ry. Co. (1897), 101 Iowa, 289, 70 N. W. R. 193.

and it was impossible to discover that they were not until they first bore fruit, it was held that the buyer's damages might be estimated as of the latter date.1

§ 1820. Place. This difference in values is, moreover, to be estimated ordinarily as of the place of delivery; if, however, there is no market there, then at the nearest and most available market, with the cost of transportation added.3

§ 1821. Measure of damages for breach of warranty when goods bought for special purpose. But while in the ordinary case the difference between the actual value and the agreed value is entirely adequate as damages, there may be cases in which a wider range is admissible. Thus, within the principle of Hadley v. Baxendale, already referred to, where the parties at the time of the making of the contract had in contemplation some special end or purpose for which the goods were warranted to be fit, then their value for the end or purpose so contemplated may be made the basis for estimating the damages.

1 Shearer v. Park Nursery Co. (1894), 103 Cal. 415, 37 Pac. R. 412, 42 Am. St. R. 125.

In Ashworth v. Wells (1898), 78 L. T. R. (Ct. of App.) 136, there was an action on a warranty of an orchid. Purchaser bought it at auction, and paid twenty guineas relying on the warranty that it was white. He cultivated it for two years, and when it flowered it was found to be a common purple one. If white it would have been worth fifty pounds at the time of the sale, while the purple was worth only 7s. 6d. Held, that the buyer could recover the fifty pounds. In Jones v. Just (1868), L. R. 3 Q. B. 197, the plaintiffs, at Liverpool, entered into a contract with the defendant for the purchase of a quantity of Manilla hemp, to arrive from Singapore by a certain ship. When it arrived it was not in a merchantable condition, and had to be sold at

a loss. The court held that since the buyer bought it for the purpose of sale, and could not have inspected the goods, they must have been sold with the implied warranty that they were merchantable, and there was no error in measuring the damages by the rate which the hemp was worth when it arrived compared with the rate which the same hemp would have realized had it been shipped in the state in which it ought to have been shipped.

2 Heilman Milling Co. v. Hotaling (Ky., 1899), 53 S. W. R. 655.

Reese v. Miles (1897), 99 Tenn. 398, 41 S. W. R. 1065 [citing Coffman v. Williams, 4 Heisk. 239; McDonald v. Timber Co., 4 Pickle, 47].

4 Berry v. Shannon (1896), 98 Ga. 459, 25 S. E. R. 514, 58 Am. St. R. 313, and other cases cited in following sections.

§ 1822. Damages for losses incidental to use or pur pose contemplated.— For similar reasons, if the buyer, in endeavoring to put the articles to the use or apply them to the purpose for which they were so warranted to be suitable, sustains naturally and proximately some loss incidental to such use or application, compensation for that loss may be included.1 Thus, for example, where the seller of a refrigerator warrants that it will keep meats until time for the spring market, and the buyer fills it with such meat and the meat is lost through defects in the refrigerator, the measure of damages is not simply the cost of remedying the defect, but will include the value of the meat lost, estimated at the value which it would have had if it had kept until the spring market.

1 See McCaa v. Elam Drug Co. (1896), 114 Ala. 74, 21 S. R. 479, 62 Am. St. R. 88.

2 Beeman v. Banta (1890), 118 N. Y. 538, 23 N. E. R. 887, 16 Am. St. R. 779, Mechem's Cas. on Damages, 259.

In Tatro v. Brower (1898), 118 Mich. 615, 77 N. W. R. 274, assumpsit was brought upon an express warranty in the sale of certain storage tanks by defendant to plaintiff. The tanks were purchased by plaintiff for the purpose of storing cider in them. This purpose was known to the defendant. The tanks, after being filled with cider, burst, and a judgment for plaintiff for the value of the cider lost was affirmed.

In Stranahan Co. v. Coit (1896), 55 Ohio St. 398, the defendant contracted to furnish pure milk to the plaintiff company, knowing that it was to be mixed with other milk and manufactured into butter and cheese. A servant of the defendant, whose duty it was to deliver the milk, adul terated it, so that the product from all the milk with which it was mixed was damaged. Held, that the vendee's damage should be at least com

pensation, and if the mixture of the impure milk with that which was pure, and its use in the factory. resulted in impairing the value of the product, this must necessarily be considered in awarding compensation.

In Coyle v. Baum (1895), 3 Okl. 695, 41 Pac. R. 389, the plaintiff purchased from the defendants oats to be fed to his livery horses. The oats, however, contained castor beans, and some of the horses that ate them died and others were injured. The court held the rule to be "without exception, that when goods are sold for a particular purpose, and the buyer has no opportunity to inspect them, there is an implied warranty that such goods shall be suitable for the particular purpose for which they are sold." And damages were approved which covered the value of the horses which died, the damage suffered by the horses which did not die, the loss to the plaintiff's business during the time the horses were sick, and the money expended in treatment of the sick animals.

In Accumulator Co. v. Dubuque

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