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

3

$ $ 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.

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."

The fact that the article was worth the price is immaterial if it would have been worth more had it been as warranted.5

$ 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.

Bigelow, 10 Allen, 242; Bach v. Levy, 2 Carr v. Moore (1860), 41 N. H. 131; 101 N. Y. 511; Jones v. Just, L R 3 Street v. Chapman (1867), 29 Ind. Q. B. 197]; Andrews v. Schreiber 142; Aultman v. Hetherington (1877), (1899), 93 Fed. R. 367 [citing further, 42 Wis. 622; Case Plow Works V. Cordage Co. v. Wohlhuter, 71 Minn. Niles, supra. In the absence of any 484, 74 N. W. R. 175; Brown v. Emershowing to the contrary it may be son, 66 Mo. App. 63; Wheelock F. regarded as the value. Seigworth v. Berkeley, 138 III, 153, 27 N. E. R. 942)

. Letfel (1874), 76 Pa. St. 476.

5 Douglass v. Moses (1896), 89 Iowa, 3 Rutan v. Ludlam (1862), 29 N. J. L. 40, 65 N. W. R. 1004. 398.

6 Eagle Iron Works V. Des Moines 4 Case Plow Works v. Niles (1895), Suburban Ry. Co. (1897), 101 Iowa, 90 Wis. 590, 63 N. W. R. 1013 [citing 289, 70 N. W. R. 193. Muller v. Eno, 14 N. Y. 597; Medbury

6

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.

$ 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.

§ 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), a loss. The court held that since the 103 Cal. 415, 37 Pac. R. 412, 42 Am. St. buyer bought it for the purpose of R. 125.

sale, and could not have inspected In Ashworth v. Wells (1898), 78 L. the goods, they must have been sold T. R. (Ct. of App.) 136, there was an with the implied warranty that they action on a warranty of an orchid. were merchantable, and there was Purchaser bought it at auction, and no error in measuring the damages paid twenty guineas relying on the by the rate which the hemp was warranty that it was white. He cul- worth when it arrived compared tivated it for two years, and when it with the rate which the same hemp flowered it was found to be a com- would have realized had it been mon purple one. If white it would shipped in the state in which it have been worth fifty pounds at the ought to have been shipped. time of the sale, while the purple 2 Heilman Milling Co. v. Hotaling was worth only 7s.6d. Held, that the (Ky., 1899), 53 S. W. R. 655. buyer could recover the fifty pounds. 3 Reese v. Miles (1897), 99 Tenn. 398,

In Jones V. Just (1868), L. R. 3 41 S. W. R. 1065 [citing Coffman v. Q. B. 197, the plaintiffs, at Liverpool, Williams, 4 Heisk. 239; McDonald v. entered into a contract with the de. Timber Co., 4 Pickle, 47). fendant for the purchase of a quan- Berry v. Shannon (1896), 98 Ga. tity of Manilla hemp, to arrive from 459, 25 S. E. R. 514, 58 Am. St. R. 313, Singapore by a certain ship. When and other cases cited in following it arrived it was not in a merchant- sections. able condition, and had to be sold at

4

§ 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.2

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.

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

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, adulterated 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

$ 1823. - So where the seller of seeds warranted them to be pure and good to raise a crop, and the buyer sowed them, but they failed to grow, it was held that compensation for the loss of his time, labor and use of his ground might be recovered. And where the seller of carriage springs warranted them to be fit for use by a carriage builder, and they proved defective, the expense of taking them out of the carriages into which they had been incorporated and fitting others in their place was held to be a proper ground for compensation.

SO

St. Ry. Co. (1894), 27 U. S. App. 364, chem's Cas. on Damages, 260. Accord, 64 Fed. R. 70, 12 C. C. A. 37, the Reiger v. Worth (1900), 127 N. C. 230. plaintiff agreed to furnish a number Compare cases in note to $ 1827. of storage battery equipments for 2 Thoms v. Dingley (1879). 70 Me. street cars, with certain warranties 100, 35 Am. R. 310. as to amount of work, durability, etc. In Randall v. Newson (1877), L R. The defendant, in order to install the 2 Q. B. Div. 102, the plaintiff bought storage batteries, incurred expenses of the defendant, who was a carriage in constructing shifting devices, manufacturer, a phaeton for two which were rendered useless by the horses, the pole of which was failure of the storage batteries t8 an- unfit for the purpose that it broke swer the purposes for which they while the plaintiff was driving, and were supplied and warrant ed. Held, as a result the horses ran away and that these expenses were properly re- were damaged. The court held that coverable as damages in an action on on the sale of an article for a spethe warranty.

cific purpose there is a warranty by In Nye & Schneider Co. v. Snyder the vendor that it is reasonably fit (1898), 56 Neb. 754, 77 N. W. R. 118, for the purpose, and there is no excement was sold to plaintiff for use ception as to latent undiscoverable in plastering a house, with a war- defects, and the measure of damages ranty of fitness for that purpose. in this case would be the value of Held, that expense of cleaning floors, the pole and the damage to the patching the plastering, removing horses, if the jury, on a second trial, door and window casings preparatory should be of opinion that the injury to replastering, and loss of use of the to the horses was the natural conhouse during the replastering were sequence of the defect in the pole. all proper subjects for recovery as In Milburn V. Belloni (1868), 39 damages. Expenses incurred in keep N. Y. 53, the plaintiff was a manuing and endeavoring to use a war- facturer of brick, and bought from ranted stallion may be recovered. the defendants a quantity of coal National Horse Importing Co. v. dust for the stated purpose of using Novak (1895), 95 Iowa, 596, 64 N. W. it in making brick. The vendors R. 616.

were told that if any dust of soft 1Shaw v. Smith (1891), 45 Kan. 334, coal was contained in it it would 25 Pac. R. 886, 11 L. R. A. 681, Me- damage or destroy the brick. It ap

.

§ 1824.

So where there was a sale of “Paris green known to be intended for use in killing cotton worms, and an inferior article was furnished, it was held that damages for the loss of the crop thereby caused could be recovered, together with the cost of the compound, the expense of its application, and interest on the money so expended."

$ 1825. —And so, further, where rags sold for making paper, and warranted to be free from contagion, were in fact in. fected with smallpox, it was held that recovery could be had, not only because they could not be made into paper without injury to the buyer's workmen, but also for sums paid out to support workmen disabled by the disease and for losses to business because of the crippled condition of the working force.

For like reasons, the seller of diseased animals is liable not

peared that the dust did contain certain months. The court said: some soft-coal dust, and in conse- “The contract expressly contemquence thereof the plaintiff's brick plated that the plaintiff was buying were injured. It was held that the in order to sell again. The defend. extent of this injury to the brick ants knew that that was the object was the proper measure of damages of the agreement. Especially in view

In Brown v. Edgington (1841), 2 of the part they took in fixing the Scott N. R. 497, the plaintiff, a wine retail price, they must be taken to merchant, sent to the shop of the de- have expected that the wheels would fendant, who was a dealer in rope, be sold at an advance.” And it was for a crane-rope for hoisting casks of held that damages for the loss of the wine. The defendant's foreman went orders which, on account of the to see the crane, took the necessary breach, the plaintiff could not fill, measurements, and a rope was made were not too remote. and fixed by a servant of the defend- 1 Jones v. George (1884), 61 Tex. 315, ant. The rope broke while a cask of 48 Am. R. 280. wine was being raised, and it was Fertilizer.- For breach of a warheld that the defendant was liable ranty of quality of a fertilizer, the for the value of the wine lost, on an buyer may recover for such losses as implied warranty that the rope was naturally and proximately result suitable for the use intended.

from the breach. Reese V. Bates In Johnston v. Faxon (1899), 172 (1897), 94 Va 321, 26 S. E. R. 865. See Mass. 466, 52 N. E. R. 539, there was also Bell v. Reynolds (1885), 78 Ala an action for a breach of contract 511, 56 Am. R. 52. to build for the plaintiff, a retail 2 Dushane v. Benedict (1886), 120 dealer, three hundred bicycles of a U. S. 630, 30 L ed. 810, 7 Sup Ct R certain kind, to be delivered during 696.