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only for the loss of the animals infected, but also for other animals of the buyer to which without his fault the disease is communicated by those bought.'

§ 1826. Expenses incurred in preparing for what the seller is to do but fails to perform, or in doing that which the seller ought to have done, or in undoing that which he did improperly, fall clearly within the doctrines of the preceding sections, and may be included within the damages to be recovered.?

For like reasons money expended in a reasonable endeavor to avoid or diminish the injury resulting from the breach of warranty, as, for example, to cure an animal sold as sound, but found to be diseased, may be recovered. Expenses, however, in an unreasonable, hopeless or useless endeavor, or losses caused by continuous use after the defects were patent and evidently incurable, could not be recovered.

1 Jeffrey v. Bigelow (1835), 13 Wend. compelled to abandon it, and the (N. Y.) 518, 28 Am. Dec. 476; Snow. shifting devices then become useless. den v. Waterman (1898), 105 Ga. 384, In Briggs v. Rumely Co. (1895), 96 31 S. E. R. 110.

Iowa, 202, 64 N. W. R. 784, freight paid 2 Thoms v. Dingley (1879), 70 Me. by a purchaser of a threshing ma100, 35 Am. R. 310.

chine was held recoverable as damIn Williams v. Thrall (1898), 101 ages for breach of warranty of the Wis. 337, 76 N. W. R. 599, it was held machine, where the freight was made that the cost of putting in a new a part of the purchase price by the heater, in place of a defective one contract of sale. supplied, could be recovered.

3 See Ellis v. Hilton (1889), 78 Mich. In Accumulator Co. v. Dubuque St. 150, 43 N. W. R. 1048, Mechem's Cases R. Co. (1894), 27 U. S. App. 364, 64 on Damages, 409, 6 L. R. A. 454; WatFed. R. 70, 12 C. C. A. 37, it is held son v. Lisbon Bridge (1837), 14 Me. that expenses incurred by a street- 201 (cases of injury). Same in warcar company in constructing shift- ranty cases. Long v. Clapp (1884), 15 ing devices necessary for the instal. Neb. 417; Coyle v. Baum (1895), 3 Okl. lation of a storage-battery system 695, 41 Pac. R. 389. Especially where are recoverable as damages against the seller encouraged the buyer to the vendor of the storage battery treat the animal. Murphy v. Mcplant when the warranties contained Graw (1889), 74 Mich, 318, 41 N. W. in the contract of sale are broken to R. 917. such an extent that the system is an 4 The purchaser of a machine sold utter failure, and the company is with a warranty cannot, upon con

$ 1827. Gains prevented as well as losses sustained may be compensated under this rule. Thus, in another seed case, where the seller sold cabbage seeds and warranted them to produce Bristol cabbage, but the warranty was false, it was held that the damages would be the value of a crop of Bristol cabbages such as ordinarily would have been produced that year, less the cost of raising and the value of the crop of inferior cabbages actually produced.'

$ 1828. - In many cases, however, of warranties of seeds, plants, and the like, the value of the crop cannot be made the basis of estimating the damages. In the ordinary case the land is not affected, but there may be cases, as, for example, where trees, shrubs, etc., are involved, in which the diminished

tinued use of the machine after its and a good crop of corn, on the defects are obvious, recover of the ground that this would allow the vendor for the loss sustained by run- plaintiff to recover the anticipated ning the machine, or the amount profits of a good crop, which in their paid out for repairs. Gaar v. Stark nature are extremely speculative (1895, Tenn. Ch. App., aff’d), 36 S. W. and contingent. But the rule was R. 149.

adhered to under the special circumNot remote or speculative ex. stances of this case, it appearing that penses.- In Sharp v. Bettis (Ky., the defendant had definitely assumed 1895), 32 S. W. R. 395, damages for such liability. extra care and expense which the In Wolcott v. Mount (1873), 36 N. J. buyer alleged he put upon a horse L. 262, Mount, a market gardener, because he supposed it to be stand. applied to the appellants, who kept ard bred, as warranted, were denied seeds for sale, for turnip seed of a because the loss was thought to be particular variety, telling them that too remote. But cases can easily be he wished to use it in raising a crop imagined where it is believed that for the early market. The seed was such damages might be recovered. furnished as of the kind specified

1 Passinger v. Thorburn (1866), 34 and was planted, but it turned out N. Y. 634, 90 Am. Dec. 753.

to have been an inferior variety. A In Flick v. Wetherbee (1866), 20 warranty having been found from Wis. 392, the lessor of farming land the evidence, the measure of damcovenanted to supply seed, but the ages was held to be the difference seed which he supplied was almost between the market value of the worthless. The court was inclined to crop raised and the same crop from disapprove the rule that the measure the seed ordered. Affirmed in 38 of damages should be the difference N. J. L. 496. between the crop which was raised In Van Wyck v. Allen (1877), 69

value of the land must be considered. Thus good fruit trees enhance the value of the land, and their value when planted can scarcely be estimated apart from the land on which they grow. It is held, therefore, in such cases, in analogy to cases of the destruction of or injury to such trees,' that damages for the breach of warranty of quality of fruit trees sold are to be

N. Y. 61, the plaintiff brought action tol cabbage seed, rather than the on an alleged warranty against the nature of the plants which produced defendants, who, as seed men, sold to the seed. And the measure of damthe plaintiff a quantity of seed under ages was the difference in value bethe name of “Van Zicklen's early tween the crop as raised and the flat Dutch cabbage seed,” knowing value of a similar crop of Bristol that the plaintiff intended to plant cabbages. it in the course of his business as a In Edgar v. Breck (1899), 172 Mass. market gardener. The seed was not 581, 52 N. E. R. 1083, there was an as represented and did not produce action for breach of a warranty that any cabbages. The court held that certain lily bulbs sold by the defend. the plaintiff might recover the value ant to the plaintiff were of a kind of the crop which would have been known as longiflorum. The instrucraised if the seed had been as repre- tion was approved that if the bulbs sented, without deducting the cost were sold for the understood purpose of tillage. This case lays down a of raising lilies for a particular marmore liberal rule of damages than ket, the measure of damages would Passinger v. Thorburn, 34 N. Y. 634, be the difference between the value though, as the court shows (p. 68), of the crop which the plaintiff raised the two cases are not in conflict. and a wop of longiflorums.

In White v. Miller (1877), 71 N. Y. In Ashworth v. Wells (1898, Eng. 118, the plaintiffs bought from de- Ct. of App.), 78 Law Times, 136, there fendants a quantity of cabbage seed was a sale by auction of an orchid which was represented to be “Bris- with a warranty that when it flowtol” seed. The plaintiffs were market ered the flower would be white. A gardeners and desired this particular white flower of this variety was prevariety, which was considered es- viously unknown. The buyer cultipecially valuable. But the seed did vated it for two years, when it flownot produce Bristol cabbages, al- ered and the flower was purple, as though it grew upon Bristol cabbage was common. It was found that if stocks, these stocks having been fer- it had been white the orchid would tilized by pollen from another variety have been worth £50 at the time of of cabbage. The court held that the the sale, and it was held that the plaintiffs clearly intended to buy, buyer might recover that amount. and the defendants to sell, seed which 1 See Dwight v. Elmira, etc. R. Co. would produce Bristol cabbages, and (1892), 132 N. Y. 199, 30 N. E. R. 398, it was therefore the crop produced Mechem's Cases on Damages, 387, 15 which determined whether the seed L. R. A. 612, 28 Am. St. R. 563. satisfied the warranty of being Bris

estimated by the difference in value of the land with and without the trees as warranted.'

§ 1829. Purely speculative profits, however, stand upon different ground. There are many cases, indeed, as has been already seen, in which a loss of profits is properly to be compensated. There is nothing in profits, as such, which necessarily renders them an unfit basis for compensation: if they are certain and not speculative, they may be taken into account; but it happens in most cases that they are not certain but wholly indefinite, speculative and contingent, and in such cases clearly they furnish no proper foundation for an award of damages. What the buyer might have made if he had done something which he could have done if the seller had done some other thing which he ought to have done but did not do, comes obviously into the region of the uncertain and problematical.3

$ 1830. Thus, where the seller of a brick machine warranted it to have the capacity to make a certain number of bricks per day, but the machine failed in this respect, it was held that the proper measure of damages was the difference in value between a machine with the capacity warranted and a machine like the one delivered, and not the profits which the buyer might have made on the larger quantity of bricks he

1 Heilman v. Pruyn (1899), 122 commissions on goods that would Mich. 301, 81 N. W. R. 97.

have ordered if samples ordered 2 See ante, § 1761.

had been sent. Held, too indefinite 3 Alpha Checkrower Co. v. Bradley for more than nominal damages. (1898), 105 Iowa, 537, 75 N. W. R. 369. But profits that might have been

In Noble v. Hand (1895), 163 Mass. made on a government dredging con289, 39 N. E. R. 1020, the plaintiff was tract which contemplated the perto sell samples of defendant's goods formance of specified work at a speci. and solicit orders for samples and for fied price are not too speculative to goods to be ordered from said sam- be recovered from the seller of dredgples, and was to receive a commission ing machinery who fails to deliver on all goods ordered from said sam- according to contract, where the conples. if not rejected by defendants. tract is known to the seller. IndusPlaintiff sent in orders for samples trial Works v. Mitchell (1897), 114 which were neither filled nor re. Mich. 29, 72 N. W. R. 25. jected, and he sought damages for

might have made and sold if the machine had had the capacity to make as many bricks as it was warranted to make. In such a case the longer the buyer should continue to operate the defective machinery, even with knowledge of its defects, and the greater the deficiency in the number of bricks which he could thereby produce, the larger would be his damages.

$ 1831. - In the case last referred to, the court cited with approval a case in Michigan in which the buyer sought to recover as damages the profits which he alleged he might have made from the operation of a saw-mill to be supplied by the seller. In that case the court, per Cooley, J., said: “The difficulty in measuring damages by profits is that they are commonly uncertain and speculative, and depend upon so many contingencies that their loss cannot be traced with reasonable certainty to the breach of the contract. When that is the case they are said to be too remote; and the damages must be estimated on a consideration of such elements of injury as are more directly and certainly the result of the failure in performance. But in some cases profits are the best possible measure of damages, for the very reason that the loss is indisputable, and the amount can be estimated with almost absolute certainty. The case of a contract for the delivery of grain or any other article which at all times finds a ready sale at a current market price is an instance: if the contract is not performed, the purchaser may recover the advance beyond the purchase price; and this, though not recovered under the name of profits, is really nothing else. It often happens also that one contract, the performance of which will result in certain and definite profits, will be dependent upon the performance of another; and if the second contract is broken, the loss of definite and fixed profits under the other is a necessary and immediate consequence. There is no difficulty in saying in some such cases that profits lost are the proper measure of damages. But the profits of running a

I Moulthrop v. Hyett (1894), 105 non v. McEwan (1882), 48 Mich. 106, Ala. 493, 17 S. R. 32, 53 Am. St. R. 139. 11 N. W. R. 828, 42 Am. R. 458.

2 Allis F. McLean (1882), 48 Mich. 3 Citing Loud v. Campbell, 26 Mich. 428, 12 N. W. R 640, citing McKin- 239; Booth v. Spuyten Duyvil Rolling

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