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Measure of Damages.

In accordance with the general rule of damages in cases of breach of contract, the measure of damages for breach of warranty is the loss directly and naturally resulting from the breach, in the ordinary course of events.118

In case of a breach of warranty of quality or condition, prima facie—that is, in the absence of special circumstances showing proximate loss of a greater amount-this loss is the difference between the value of the goods as they in fact were at the time of delivery119 and the value of the goods as it would have been if they had been as warranted.120 Thus the

118 Frohreigh v. Gammon, 28 Minn. 476, 11 N. W. 88, and cases cited in note 120, infra. See Sales Act, § 69 (6); ante, p. 357.

119 Eagle Iron Works v. Railway Co., 101 Iowa, 289, 70 N. W. 193. Where goods, such as fruit trees, are sold by description or their kind or quality is otherwise warranted, and it cannot be as certained until they come into bearing whether they conform to the warranty, the damages may be calculated as of that time. Shearer v. Nursery Co., 103 Cal. 415, 37 Pac. 412, 42 Am. St. Rep. 125.

Where plaintiff bought an orchid described as of a certain white variety for 20 guineas, and after cultivation it produced a purple flower and was worth only 7 s. 6 d., but if of the described variety it would have been worth £50, he was entitled to wait till the plant flowered, and to recover the difference between its value as a purple orchid and as that described. Ashworth v. Wells, 78 Law T. 136, C. A. 14 Times Law Rep. 227.

120 Jones v. Just, L. R. 3 Q. B. 197; Dingle v. Hare, 7 C. B. (N. S.) 145, 29 Law J. C. P. 144; Reggio v. Braggiotti, 7 Cush. (Mass.) 166; Case v. Stevens, 137 Mass. 551; Thoms v. Dingley, 70 Me. 100, 35 Am. Rep. 310; Rutan v. Ludlam, 29 N. J. Law, 398; Freyman v. Knecht, 78 Pa. 141; Porter v. Pool, 62 Ga. 238; Herring v. Skaggs, 62 Ala: 180, 34 Am. Rep. 4; Ferguson v. Hosier, 58 Ind. 438; Case Threshing Mach. Co. v. Haven, 65 Iowa, 359, 21 N. W. 677; Aultman & Taylor Co. v. Hetherington, 42 Wis. 622; Merrick v. Wiltse, 37 Minn. 41, 33 N. W. 3; Wheeler & W. Mfg. Co. v. Thompson, 33 Kan. 491, 6 Pac. 902; E. A. Moore Furniture Co. v. W. J. Sloane, 166 Ill. 457, 46 N. E. 1128; Hooper v. Story, 155 N. Y. 171, 49 N. E. 773; J. I. Case Plow Works v. Niles & Scott Co., 90 Wis. 590, 63 N. W. 1013; Park v. Richardson & . Boynton Co., 91 Wis. 189, 64 N. W. 859; Maimisburg Twine & Cordage Co. v. Wohlhuter, 71 Minn. 484, 74 N. W. 175; Western Twine Co. v. Wright, 11 S. D. 521, 78 N. W. 942, 44 L. R. A. 438; Crane Co. v. Construction Co., 73 Fed. 984, 20 C. C. A. 233; Stillwell, Bierce & Smith-Vaile Co. v. Canning Co., 78 Miss. 779, 29 South. 513. See Sales Act, § 69 (7).

fact that the value of the goods equaled or exceeded the price does not prevent the buyer from recovering damages, if the value of the goods as warranted would have been greater.111

The rules in respect to special damages which have been stated are applicable.122 The question is what a reasonable man, with the knowledge of the parties, would have contemplated as the probable result of the breach of warranty had he applied his mind to it. Thus, where seed is sold for planting, warranted to be of a particular description, and different seed is delivered and sown, the seller is liable for the loss of the crop,

121 Douglas v. Moses (Iowa) 65 N. W. 1004. Evidence is not admissible in defense to show that a profit was realized by the buyer. Andrews v. Schreiber (C. C.) 93 Fed. 367.

122 Ante, p. 357. See Sales Act, § 70. See Thoms v. Dingley, 70 Me. 100, 35 Am. Rep. 310; Parks v. Tool Co., 54 N. Y. 586; Thorne v. McVeagh, 75 Ill. 81; Herring v. Skaggs, 62 Ala. 180, 34 Am. Rep. 4 (seller not liable for valuables stolen from safe warranted burglar proof); McCormick v. Vanatta, 43 Iowa, 389; Aultman v. Stout, 15 Neb. 586, 19 N. W. 464; English v. Commission Co., 6 C. C. A. 416, 57 Fed. 451; Coyle v. Baum, 3 Okl. 695, 41 Pac. 389; Snowden v. Waterman, 105 Ga. 384, 31 S. E. 110; Johnston v. Faxon, 172 Mass. 466, 52 N. E. 539. Buyer reselling with warranty may recover costs of defense against subpurchaser, where seller declines to defend. Lewis v. Peake, 7 Taunt. 153; Hammond v. Bussey, 20 Q. B. Div. 79. Where the seller sold a refrigerator to a poultry dealer with knowledge that he intended to use it to preserve chickens for the May market, and warranted that it would keep them in perfect condition, which it failed to do, and many chickens were lost, the buyer was entitled to recover, in addition to the difference between the value of the refrigerator as constructed and as warranted, the market value of the chickens lost, less expenses of sale. Beeman v. Banta, 118 N. Y. 538, 23 N. E. 887, 16 Am. St. Rep. 779. Where a manufacturer of ice cream bought coloring matter, which the seller, knowing its purpose, represented to be pure and harmless, but which in fact was poisonous, and the buyer's customers who ate ice cream containing the matter were made sick, and the buyer destroyed the ice cream, held, that the buyer could recover the value of the goods so destroyed, and the damage caused by the resulting loss of customers. Swain v. Schieffelin, 134 N. Y. 471, 31 N. E. 1025, 18 L. R. A. 385. The buyer, suing for breach of warranty of a tackle block, cannot recover a sum paid by him without suit, and without communication with the defendant, to a servant for personal injuries caused by the breaking of the block, unless the servant might have recovered from the plaintiff. Roughan v. Block Co., 161 Mass. 24, 36 N. E. 461.

or the difference in value between the crop raised and such a crop as would ordinarily have been raised had the seed been as warranted, according to the circumstances of the case.128 So, "where one sells and warrants a thing for a particular use, upon reasonable ground for believing that, if put to such. use, a certain loss to the buyer will probably result if the warranty is untrue, the seller is, under the warranty, chargeable with the loss, as one which may reasonably be supposed to have been in contemplation of the parties when making the contract." 124

123 Wolcott v. Mount, 38 N. J. Law, 496, 20 Am. Rep. 425, affirming Id., 36 N. J. Law, 262, 13 Am. Rep. 438; White v. Miller, 71 N. Y. 118, 27 Am. Rep. 13; Id., 78 N. Y. 393, 34 Am. Rep. 544. See, also, Passenger v. Thorburn, 34 N. Y. 634, 90 Am. Dec. 753; Van Wyck v. Allen, 69 N. Y. 61, 25 Am. Rep. 136; Edgar v. Breck & Sons Corp., 172 Mass. 581, 52 N. E. 1083. Cf. Randall v. Raper, El., Bl. & EL 84, 27 Law J. Q. B. 266. Contra, Butler v. Moore, 68 Ga. 780, 45 Am. Rep. 508. Where a druggist sold Paris green to a planter for the known purpose of killing cotton worms, but the article was not Paris green, and failed to kill the worms on being applied to the buyer's crop, the measure of damages for the breach of the contract, if it resulted in the loss of the crop, was the value of the crop as it stood, with the cost of the article, the expense of applying it, and interest. Jones v. George, 56 Tex. 149, 42 Am. Rep. 689; Id., 61 Tex. 345, 48 Am. Rep. 280.

Where fruit trees were bought to be set out on an agreement that they should be of certain varieties, or others equally desirable, and on commencing to bear they were found to be of inferior variety, the measure of damages was the value they would have added to the premises had they been of the varieties agreed. Heilman v. Pruyor, 122 Mich. 301, 81 N. W. 97, 80 Am. St. Rep. 570.

124 Frohreich v. Gammon, 28 Minn. 476, 11 N. W. 88, per Berry, J. See, also, Wilson v. Reedy, 32 Minn. 256, 20 N. W. 153.

APPENDIX.

THE SALES ACT

Following the example of Great Britain, which in 1893 enacted the Sale of Goods Act,1 several states of the Union have already enacted the so-called Sales Act. The English act was drafted by Mr. M. D. Chalmers, who prepared the English Bills of Exchange Act, which is the foundation of the Negotiable Instruments Law, now in force in a large part of the Union. The Sales Act is based on the English Sale of Goods Act. The original draft was prepared in 1902–3 by Prof. Samuel Williston of Harvard University, at the request of the Commissioners on Uniform State Laws, and was presented to the conference of the Commissioners and discussed at its meeting in 1904. The draft was then recommitted to the Committee on Commercial Law, and a revised draft was presented at the meeting of the conference in 1905. This draft included for the first time a number of sections on the transfer of property by means of document of title, which are not contained in the English act, and because of these sections it was thought best again to recommit the draft. At the meeting of the conference in 1906 the draft in its present form was adopted and recommended to the Legislatures of the several states for passage. The act is in the main declaratory in its effect; but it makes some changes, and necessarily changes the law in some jurisdictions on points concerning which a conflict of laws has existed.

1 St. 55 & 57 Vict. c. 71; post, p. 413.

2 Connecticut, Pub. Acts 1907, c. 212; New Jersey, Laws 1907, c. 132; Arizona, Sess. Laws 1907, c. 99.

• Sections 27-40.

4 For the history of the act, see preface in pamphlet containing the draft printed by the Commissioners. This pamphlet contains notes to the several sections, prepared by Prof. Williston. The annotated draft is published in the Report of the American Bar Association, Vol. 30, 1906, part 2, p. 343 et seq.

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