§ 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.2 St. Ry. Co. (1894), 27 U. S. App. 364, 64 Fed. R. 70, 12 C. C. A. 37, the plaintiff agreed to furnish a number of storage battery equipments for street cars, with certain warranties as to amount of work, durability, etc. The defendant, in order to install the storage batteries, incurred expenses in constructing shifting devices, which were rendered useless by the failure of the storage batteries to an swer the purposes for which they were supplied and warrant ed. Held, that these expenses were properly recoverable as damages in an action on the warranty. In Nye & Schneider Co. v. Snyder (1898), 56 Neb. 754, 77 N. W. R. 118, cement was sold to plaintiff for use in plastering a house, with a warranty of fitness for that purpose. Held, that expense of cleaning floors, patching the plastering, removing door and window casings preparatory to replastering, and loss of use of the house during the replastering were all proper subjects for recovery as damages. Expenses incurred in keeping and endeavoring to use a warranted stallion may be recovered. National Horse Importing Co. v. Novak (1895), 95 Iowa, 596, 64 N. W. R. 616. 1 Shaw v. Smith (1891), 45 Kan. 334, 25 Pac. R. 886, 11 L. R. A. 681, Me chem's Cas. on Damages, 260. Accord, Reiger v. Worth (1900), 127 N. C. 230. Compare cases in note to § 1827. 2 Thoms v. Dingley (1879). 70 Me. 100, 35 Am. R. 310. In Randall v. Newson (1877), L. R. 2 Q. B. Div. 102, the plaintiff bought of the defendant, who was a carriage manufacturer, a phaeton for two horses, the pole of which was so unfit for the purpose that it broke while the plaintiff was driving, and as a result the horses ran away and were damaged. The court held that on the sale of an article for a specific purpose there is a warranty by the vendor that it is reasonably fit for the purpose, and there is no exception as to latent undiscoverable defects, and the measure of damages in this case would be the value of the pole and the damage to the horses, if the jury, on a second trial, should be of opinion that the injury to the horses was the natural consequence of the defect in the pole. In Milburn v. Belloni (1868), 39 N. Y. 53, the plaintiff was a manufacturer of brick, and bought from the defendants a quantity of coal dust for the stated purpose of using it in making brick. The vendors were told that if any dust of soft coal was contained in it it would 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.1 § 1825. And so, further, where rags sold for making paper, and warranted to be free from contagion, were in fact infected 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 defendextent 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 of the part they took in fixing the retail price, they must be taken to have expected that the wheels would be sold at an advance." And it was held that damages for the loss of the orders which, on account of the breach, the plaintiff could not fill, were not too remote. In Brown v. Edgington (1841), 2 Scott N. R. 497, the plaintiff, a wine merchant, sent to the shop of the defendant, who was a dealer in rope, for a crane-rope for hoisting casks of wine. The defendant's foreman went to see the crane, took the necessary measurements, and a rope was made and fixed by a servant of the defendant. The rope broke while a cask of wine was being raised, and it was held that the defendant was liable for the value of the wine lost, on an implied warranty that the rope was suitable for the use intended. In Johnston v. Faxon (1899), 172 Mass. 466, 52 N. E. R. 539, there was an action for a breach of contract to build for the plaintiff, a retail dealer, three hundred bicycles of a certain kind, to be delivered during 1 Jones v. George (1884), 61 Tex. 345, 48 Am. R. 280. Fertilizer. For breach of a warranty of quality of a fertilizer, the buyer may recover for such losses as naturally and proximately result from the breach. Reese v. Bates (1897), 94 Va. 321, 26 S. E. R. 865. See also Bell v. Reynolds (1885), 78 Ala. 511, 56 Am. R. 52. 2 Dushane v. Benedict (1886), 120 U. S. 630, 30 L ed. 810, 7 Sup. Ct. R. 696. 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.1 § 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.' 1 Jeffrey v. Bigelow (1835), 13 Wend. (N. Y.) 518, 28 Am. Dec. 476; Snow den v. Waterman (1898), 105 Ga. 384, 31 S. E. R. 110. 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. 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. 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 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. 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 § 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 instruc tion 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. |