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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.'

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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.2

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.

compelled to abandon it, and the shifting devices then become useless.

In Briggs v. Rumely Co. (1895), 96 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 damages for breach of warranty of the machine, where the freight was made a part of the purchase price by the contract of sale.

1 Jeffrey v. Bigelow (1835), 13 Wend. (N. Y.) 518, 28 Am. Dec. 476; Snowden v. Waterman (1898), 105 Ga. 384, 31 S. E. R. 110.

In Williams v. Thrall (1898), 101 Wis. 337, 76 N. W. R. 599, it was held that the cost of putting in a new heater, in place of a defective one supplied, could be recovered.

3 See Ellis v. Hilton (1889), 78 Mich. 150, 43 N. W. R. 1048, Mechem's Cases on Damages, 409, 6 L. R. A. 454; Watson v. Lisbon Bridge (1837), 14 Me. 201 (cases of injury). Same in warranty cases. Long v. Clapp (1884), 15 Neb. 417; Coyle v. Baum (1895), 3 Okl. 695, 41 Pac. R. 389. Especially where the seller encouraged the buyer to treat the animal. Murphy v. McGraw (1889), 74 Mich. 318, 41 N. W. R. 917.

4 The purchaser of a machine sold with a warranty cannot, upon con

In Accumulator Co. v. Dubuque St. R. Co. (1894), 27 U. S. App. 364, 64 Fed. R. 70, 12 C. C. A. 37, it is held that expenses incurred by a streetcar company in constructing shifting devices necessary for the installation of a storage-battery system are recoverable as damages against the vendor of the storage-battery plant when the warranties contained in the contract of sale are broken to such an extent that the system is an utter failure, and the company is

§ 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.1

§ 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 defects are obvious, recover of the vendor for the loss sustained by running the machine, or the amount paid out for repairs. Gaar v. Stark (1895, Tenn. Ch. App., aff'd), 36 S. W. R. 149.

Not remote or speculative expenses.-In Sharp v. Bettis (Ky., 1895), 32 S. W. R. 395, damages for extra care and expense which the buyer alleged he put upon a horse because he supposed it to be standard bred, as warranted, were denied because the loss was thought to be too remote. But cases can easily be imagined where it is believed that such damages might be recovered.

1 Passinger v. Thorburn (1866), 34 N. Y. 634, 90 Am. Dec. 753.

In Flick v. Wetherbee (1866), 20 Wis. 392, the lessor of farming land covenanted to supply seed, but the seed which he supplied was almost worthless. The court was inclined to disapprove the rule that the measure of damages should be the difference between the crop which was raised

and a good crop of corn, on the ground that this would allow the plaintiff to recover the anticipated profits of a good crop, which in their nature are extremely speculative and contingent. But the rule was adhered to under the special circumstances of this case, it appearing that the defendant had definitely assumed such liability.

In Wolcott v. Mount (1873), 36 N. J. L. 262, Mount, a market gardener. applied to the appellants, who kept seeds for sale, for turnip seed of a particular variety, telling them that he wished to use it in raising a crop for the early market. The seed was furnished as of the kind specified and was planted, but it turned out to have been an inferior variety. A warranty having been found from the evidence, the measure of damages was held to be the difference between the market value of the crop raised and the same crop from the seed ordered. Affirmed in 38 N. J. L. 496.

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 on an alleged warranty against the defendants, who, as seed men, sold to the plaintiff a quantity of seed under the name of “Van Zicklen's early flat Dutch cabbage seed," knowing that the plaintiff intended to plant it in the course of his business as a market gardener. The seed was not as represented and did not produce any cabbages. The court held that the plaintiff might recover the value of the crop which would have been raised if the seed had been as represented, without deducting the cost of tillage. This case lays down a more liberal rule of damages than Passinger v. Thorburn, 34 N. Y. 634, though, as the court shows (p. 68), the two cases are not in conflict.

In White v. Miller (1877), 71 N. Y. 118, the plaintiffs bought from defendants a quantity of cabbage seed which was represented to be "Bristol" seed. The plaintiffs were market gardeners and desired this particular variety, which was considered especially valuable. But the seed did not produce Bristol cabbages, although it grew upon Bristol cabbage stocks, these stocks having been fertilized by pollen from another variety of cabbage. The court held that the plaintiffs clearly intended to buy, and the defendants to sell, seed which would produce Bristol cabbages, and it was therefore the crop produced which determined whether the seed satisfied the warranty of being Bris

tol cabbage seed, rather than the nature of the plants which produced the seed. And the measure of damages was the difference in value between the crop as raised and the value of a similar crop of Bristol cabbages.

In Edgar v. Breck (1899), 172 Mass. 581, 52 N. E. R. 1083, there was an action for breach of a warranty that certain lily bulbs sold by the defendant to the plaintiff were of a kind known as longiflorum. The instruction was approved that if the bulbs were sold for the understood purpose of raising lilies for a particular market, the measure of damages would be the difference between the value of the crop which the plaintiff raised and a crop of longiflorums.

In Ashworth v. Wells (1898, Eng. Ct. of App.), 78 Law Times, 136, there was a sale by auction of an orchid with a warranty that when it flowered the flower would be white. A white flower of this variety was previously unknown. The buyer cultivated it for two years, when it flowered and the flower was purple, as was common. It was found that if it had been white the orchid would have been worth £50 at the time of the sale, and it was held that the buyer might recover that amount.

1 See Dwight v. Elmira, etc. R. Co. (1892), 132 N. Y. 199, 30 N. E. R. 398, Mechem's Cases on Damages, 387, 15 L. R. A. 612, 28 Am. St. R. 563.

estimated by the difference in value of the land with and without the trees as warranted.1

§ 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.

2 See ante, § 1761.

3 Alpha Checkrower Co. v. Bradley (1898), 105 Iowa, 537, 75 N. W. R. 369.

In Noble v. Hand (1895), 163 Mass. 289, 39 N. E. R. 1020, the plaintiff was to sell samples of defendant's goods and solicit orders for samples and for goods to be ordered from said samples, and was to receive a commission on all goods ordered from said samples, if not rejected by defendants. Plaintiff sent in orders for samples which were neither filled nor rejected, and he sought damages for

have been ordered if samples ordered had been sent. Held, too indefinite for more than nominal damages.

But profits that might have been made on a government dredging contract which contemplated the performance of specified work at a specified price are not too speculative to be recovered from the seller of dredging machinery who fails to deliver according to contract, where the contract is known to the seller. Industrial Works v. Mitchell (1897), 114 Mich. 29, 72 N. W. R. 25.

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.

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§ 1831. In the case last referred to,2 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.

1 Moulthrop v. Hyett (1894), 105 Ala. 493, 17 S. R. 32, 53 Am. St. R. 139.

2 Allis v. McLean (1882), 48 Mich. 428, 12 N. W. R. 640, citing McKin

But the profits of running a

non v. McEwan (1882), 48 Mich. 106, 11 N. W. R. 828, 42 Am. R. 458.

3 Citing Loud v. Campbell, 26 Mich. 239; Booth v. Spuyten Duyvil Rolling

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