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seller to enable him to remedy defects or on his promise to do so." If the contract requires the chattel to be returned at a certain time, and a premature offer to return is made, the failure of the seller to object to the return on this account and placing his refusal to accept the return on the specific ground that the changed condition of the chattel was such as to deprive the buyer of his right to return has been held a waiver of the objection that the return was premature. If the buyer has duly tendered a return and the seller refuses to accept the same, the buyer may then resort to his action for damages or defend against an action for the price. And under the general rule that the law will not require a vain thing to be done, if the seller has expressly and clearly stated that he will not accept a return, the buyer is absolved from his obligation to tender a return.10 The question as to whether an agent of the seller may waive the required return depends on his actual or ostensible authority.11 It has been held that an agent having power to sell threshing machines for his principal within a designated territory is presumed to have authority, when the buyer refuses to accept a machine because of defects in its work, to agree that it may be retained on trial a longer time than specified in the written contract of sale, and that it should be fixed up and made to work satisfactorily.12

Measure of Damages

532. General Rule.-In some cases, especially the very early ones, the view has been taken that where the buyer resorts to his claim for damages for breach of a warranty of quality, soundness or the like. the general damages recoverable are the difference in the actual value of the article sold or the value with the defects and the price paid; 13 and this is the rule adopted in some jurisdictions where the claim for damages is based on the fraud of the seller. 14 On the other hand the modern view, which seems to prevail even in jurisdictions where the rule stated above was first announced, is that the buyer may recover as general damages the difference between the actual value of the article sold and what would have been its value if it had been as warranted,15 and is not to be restricted to a recovery of the difference

7. Lorenz v. Hart-Parr Co., 146 Wis. 261, 131 N. W. 446, 50 L.R.A. (N.S.) 796.

Note: 50 L.R.A. (N.S.) 803, 804. 8. Rosenthal v. Rambo, 165 Ind. 584, 76 N. E. 404, 3 L.R.A. (N.S.) 678.

9. Rosenthal v. Rambo, 165 Ind. 584, 76 N. E. 404, 3 L.R.A. (N.S.) 678. See also Sutherland v. Green, 49 Mont. 379, 142 Pac. 636, Ann. Cas. 1916A 561.

Notes: 1 L.R.A. 646; 32 L.R.A. (N.S.) 214; 50 L.R.A. (N.S.) 778.

10. Notes: 1 L.R.A. 646; 32 L.R.A.
(N.S.) 214; 50 L.R.A.(N.S.) 803.
11. Note: 50 L.R.A. (N.S.) 803.
12. Bannon v. C. Aultman, etc., Co.,
80 Wis. 307, 49 N. W. 967, 27 A. S. R.
37.

13. Note: 40 Am. Dec. 304.
14. See infra, par. 643.

15. Marsh v. McPherson, 105 U. S.

between the actual value of the chattel and the price paid.16 It has also been held that a seller's ignorance of the manner in which goods. sold by him have been packed will not exempt him from liability for the difference between the value of the packages in their actual condition and what it would have been if the packages had been uniform and corresponded with the samples by which the sale was effected.1 That this rule is sound in principle is evident. A warranty on the sale of a chattel is, in legal effect, a promise that the subject of sale corresponds with the warranty, in soundness or other quality to which it relates; and is always so stated in the declaration when this is technically framed. It naturally follows that if the subject proves defective within the meaning of the warranty, the stipulation can be satisfied in no other way than by making it good. That cannot be done except by paying to the buyer such sum as, together with the cash value of the defective article, shall amount to what it would have been worth if the defect had not existed. 18 Furthermore, there is no right in the buyer, according to the general rule, to return the article and recover the price paid, unless there is fraud or an express agreement for a return.19 This view is also taken in most jurisdictions where the buyer sues in tort for fraudulent representations on the part

709, 26 U. S. (L. ed.) 1139; Berry v. Shannon, 98 Ga. 459, 25 S. E. 514, 58 A. S. R. 313; Bushman v. Taylor, 2 Ind. App. 12, 28 N. E. 97, 50 A. S. R. 228; Meyer v. Green, 21 Ind. App. 138, 51 N. E. 942, 69 A. S. R. 344; Douglass v. Moses, 89 Ia. 40, 56 N. W. 271, 48 A. S. R. 353; Loxtercamp v. Lininger Implement Co., 147 Ia. 29, 125 N. W. 830, 33 L.R.A. (N.S.) 501; Hauss v. Surran, 168 Ky. 686, 182 S. W. 927, L.R.A.1916D 997; Tuttle v. Brown, 4 Gray (Mass.) 457, 64 Am. Dec. 80; Bradford v. Manly, 13 Mass. 139, 7 Am. Dec. 122; Voorhees v. Earl, 2 Hill (N. Y.) 288, 38 Am. Dec. 588; Cary v. Gruman, 4 Hill (N. Y.) 625, 40 Am. Dec. 299; Passinger v. Thornburn, 34 N. Y. 634, 90 Am. Dec. 753; Hardie-Tynes Mfg. Co. v. Easton Cotton Oil Co., 150 N. C. 150, 63 S. E. 676, 134 A. S. R. 899; Hampton Guano Co. v. Hill Live Stock Co., 168 N. C. 442, 84 S. E. 774, L.R.A.1915D 875; Wiggins v. Jackson, 31 Okla. 292, 121 Pac. 662, 43 L.R.A. (N.S.) 153; Ogden v. Beatty, 137 Pa. St. 197, 20 Atl. 620, 21 A. S. R. 862; Western Twine Co. v. Wright, 11 S. D. 521, 78 N. W. 942, 44 L.R.A. 438; Loisseau v.

Gates, 31 S. D. 227, 140 N. W. 258, Ann. Cas. 1915D 1157; Woodward v. Thacher, 21 Vt. 580, 52 Am. Dec. 73; Fiske v. Tank, 12 Wis. 276, 78 Am. Dec. 737; Northern Supply Co. v. Wangard, 123 Wis. 1, 100 N. W. 1066, 107 A. S. R. 984; Studebaker Corp. v. Hanson, 24 Wyo. 222, 157 Pac. 582, 160 Pac. 336, Ann. Cas. 1917E 557; Smith v. Green, L. R. 1 C. P. Div. 92, 45 L. J. C. P. 28, 33 L. T. N. S. 572, 24 W. R. 142, 23 Eng. Rul. Cas. 566.

Notes: 38 Am. Dec. 592; 39 Am. Dec. 197; 40 Am. Dec. 303; 52 Am. Dec. 73; 64 Am. Dec. 83; 18 L.R.A. 385; 52 L.R.A. 233; 34 L.R.A.(N.S.) 697; 23 Eng. Rul. Cas. 572.

16. Douglass v. Moses, 89 Ia. 40, 56 N. W. 271, 48 A. S. R. 353; Cary v. Gruman, 4 Hill (N. Y.) 625, 40 Am Dec. 299.

17. Fuller v. Cowell, 8 La. Ann. 136, 58 Am. Dec. 676.

18. Cary v. Gruman, 4 Hill (N. Y.) 625, 40 Am. Dec. 299. See also Voorhees v. Earl, 2 Hill (N. Y.) 288, 38 Am. Dec. 588.

19. See infra, par. 568.

of the buyer.20 Where there is no commodity on the market which will conform to the seller's warranty, there is no criterion for estimating what the chattel would be worth if it had conformed to the warranty, and in such a case it has been held that the general damages recoverable must be limited to the difference between the agreed price and the actual value of the chattel. The damages for breach of warranty of a machine a part of which breaks down are not necessarily the amount paid for a new part, and where an unreasonable price is paid therefor the recovery has been denied. For the purpose of fixing the general damages, the difference in value is to be estimated as of the time and place of delivery.

533. Determination of Value in Defective Condition.-Where the buyer sells the defective article, using reasonable care in so doing to secure the best price, it seems that the price so received by him will fix the value of the article in its defective condition for the purpose of fixing the amount of the buyer's damages. And where the warranty was of soundness in a horse sold, it has been held that the buyer may resell him in his diseased condition and is not required to incur the trouble and risk of keeping him in order, by experiments in medical or other treatment, to ascertain if he could not be cured and made more valuable, and if, in disposing of him, he acted with common prudence and discretion, the price obtained for him should be deemed the proper measure of his value, even though the purchaser thereafter by his treatment effected his cure. Evidence as to what a person offered the buyer for the chattel and that the offer was refused has been held inadmissible in the seller's favor to prove its value.5 ·

534. Effect Given to Price Paid as Affecting Damages. It does not add to or detract any from the force or compass of the warranty that the buyer may have paid a greater or less price than the actual value of the property had it been as warranted. Still though the price paid does not itself affect the measure of damages recoverable, effect is given thereto for the purpose of determining what the value of the article would have been if it had been as warranted. And it has been said that the agreed price is strong evidence of the actual value;

20. See infra, par. 643.

1. Huyett-Smith Mfg. Co. v. Gray, 129 N. Č. 438, 40 S. E. 178, 57 L.R.A. 193.

2. Fairbanks Steam Shovel Co. v. Holt, 79 Wash. 361, 140 Pac. 394, L.R.A.1915B 477.

3. Bushman v. Taylor, 2 Ind. App. 12, 28 N. E. 97, 50 A. S. R. 228; Meyer v. Green, 21 Ind. App. 138, 51 N. E. 942, 69 A. S. R. 344.

4. Woodward v. Thacher, 21 Vt. 580, 52 Am. Dec. 73. As to the somewhat analogous right of the seller to resell on account of a buyer who refuses to accept delivery and thus fix the market value, see supra, par. 376 et seq.

5. Finley v. Quirk, 9 Minn. 194, 86 Am. Dec. 93.

6. Cary v. Gruman, 4 Hill (N. Y.) 625, 40 Am. Dec. 299.

Note: 40 Am. Dec. 304.

and this should never be departed from, unless it be clear that such value was more or less than the sum at which the parties fixed it."

535. Interest. In a number of cases the buyer has been permitted to recover interest on his damages arising from the breach of warranty when such damages were readily ascertainable.8 On the other hand the damages recoverable for breach of warranty as to the quality or condition of the subject matter of the sale are usually unliquidated in their nature and not easily ascertainable and interest thereon cannot as a general rule be recovered before they have been liquidated by judgment, or at least prior to the commencement of the action; this is in pursuance of the general rule denying the recovery of interest on an unliquidated claim though arising out of contract. Thus where the warranty relates to quality, the buyer is not entitled to interest from the time of sale on the difference between the actual value of the article and what it would have been worth if it had been as warranted; 10 so where the warranty relates to the kind of seed sold, interest, on the difference in value of the crop raised and the crop which would have been raised if the seed had been as warranted, from the time the crop could have been sold, is not recoverable, as it falls within the general rule denying the recovery of interest on unliquidated demands,11 and it has been held in such a case that interest is not recoverable even from the time of the commencement of the action.12 On the other hand where the seed failed to germinate, interest on the expenses incurred in the planting of the same has been allowed.13

536. Special or Consequential Damages; General Rule.-Where a buyer confiding in a warranty has suffered consequential loss, the damages should make good the defects in the property sold, and also such additional loss as is the direct consequence of the seller's breach of his warranty,14 but remote or speculative damages not reasonably

7. Cary v. Gruman, 4 Hill (N. Y.) to the damages for breach of warranty 625, 40 Am. Dec. 299.

8. Note: 28 L.R.A. (N.S.) 49.

9. White v. Miller, 71 N. Y. 118, 27 Am. Rep. 13, 78 N. Y. 393, 34 Am. Rep. 544; Lewis v. Rountree, 79 N. C. 122, 28 Am. Rep. 309.

Notes: 31 Am. Rep. 498; 28 L.R.A. (N.S.) 49.

See INTEREST, vol. 15, p. 7. 10. Lewis v. Rountree, 79 N. C. 122, 28 Am. Rep. 309.

11. White v. Miller, 71 N. Y.

27 Am. Rep. 13.

Note: 37 L.R.A. (N.S.) 88.
12. White v. Miller, 78 N. Y.

34 Am. Rep. 544.

13. Note: 37 L.R.A. (N.S.) 88.

in regard to the kind or condition of seed generally, see infra, par. 542.

14. Dushane v. Benedict, 120 U. S. 630, 7 S. Ct. 696, 30 U. S. (L. ed.) 810; Shearer v. Park Nursery Co., 103 Cal. 415, 37 Pac. 412, 42 A. S. R. 125; Butler v. Moore, 68 Ga. 780, 45 Am. Rep. 508; Joy v. Bitzer, 77 Ía. 73, 4) N. W. 575, 3 L.R.A. 184; Tyler v. Moody, 111 Ky. 191, 63 S. W. 433, 98 A. S. R. 406, 54 L.R.A. 417; Sapp v. Bradfield, 137 Ky. 308, 125 S. W. 721, 136 A. S. R. 291; Thoms v. Dingley, 70 Me. 100, 35 Am. Rep. 310; Leavitt v. Fiberloid Co., 196 Mass. 440, 82 N. E. 682, 15 L.R.A.(N.S.) 855; GasAs coigne v. Cary Brick Co., 217 Mass.

118,

393,

As

within the contemplation of the parties are not recoverable.15 regards special damages the buyer is not limited to the time of the breach, but may recover damages sustained up to the time when the breach is discovered, or with ordinary care and attention might have been discovered.16 Some well considered cases make a distinction between cases of mere breach of warranty and cases of fraudulent representation of qualities not possessed, or fraudulent concealment of known unfitness for the service the seller knows the buyer has in view in making the purchase, and regard the latter class of cases as calling for a broader conception of the consequential damages recoverable.17 It is not easy to draw the line between damages which are to be considered as the direct consequences of a defect in an article sold with. warranty of soundness and those damages which are regarded as too remote or speculative. A statement of the facts and of the decisions. rendered thereon, in the cases, will best tend to elucidate the principles applied by the courts.18

537. Application of Rule Generally.-Where the warranty was as to the quantity of the goods shipped to the buyer and the latter without inspection shipped them to a foreign country and paid import duties, exacted by such country, in accordance with the invoice from the seller, it has been held that the excess of duties so paid is not

breaking of defective carriage pole);
Smith v. Green, 1 C. P. D. 92, 45 L.
J. C. Pl. 28, 33 L. T. N. S. 572, 24 W.
R. 142, 23 Eng. Rul. Cas. 566.

Notes: 40 Am. Dec. 304; 90 Am.
Dec. 760; 100 Am. Dec. 405; 136 A.
S. R. 295; 18 L.R.A. 385; 6 Eng. Rul.
Cas. 625.

302, 104 N. E. 734, Ann. Cas. 1917C 336; Passinger v. Thorburn, 34 N. Y. 634, 90 Am. Dec. 753; Milburn v. Belloni, 39 N. Y. 53, 100 Am. Dec. 403; Swain v. Schieffelin, 134 N. Y. 471, 31 N. E. 1025, 18 L.R.A. 385; Haynor Mfg. Co. v. Davis, 147 N. C. 267, 61 S. E. 54, 17 L.R.A. (N.S.) 193 (cost of license fee necessary to resell bever- 15. Herring v. Skaggs, 62 Ala. 180, age warranted in sale to merchant to 34 Am. Rep. 4; Hargous v. Ablon, 3 be nonalcoholic); Livermore Foundry, Denio (N. Y.) 406, 45 Am. Dec. 481; etc., Co. v. Union Compress, etc., Co., Birdsinger v. McCormick Harvesting 105 Tenn. 187, 58 S. W. 270, 53 L.R.A. Mach. Co., 183 N. Y. 487, 76 N. E. 611, 482 (injury to plant and loss of rental 5 Ann. Cas. 586, 3 L.R.A.(N.S.) 1047. use caused by explosion of defective 16. Shearer v. Park Nursery Co., 103 boiler); Jones v. George, 61 Tex. 345, Cal. 415, 37 Pac. 412, 42 A. S. R. 125. 48 Am. Rep. 280; on prior appeal, 56 17. Herring v. Skaggs, 62 Ala. 180, Tex. 149, 42 Am. Rep. 689; Jorgensen 34 Am. Rep. 4. See infra, par. 644, v. Gessell Pressed Brick Co., 45 Utah as to damages recoverable for fraud 31, 141 Pac. 460, Ann. Cas. 1917C on the part of the seller generally. 309; Gerst v. Jones, 32 Grat. (Va.) 18. Herring v. Skaggs, 62 Ala. 180. 518, 34 Am. Rep. 773; Fisk v. Tank, 17 Wis. 276, 78 Am. Dec. 737; Northern Supply Co. v. Wangard, 123 Wis. 1, 100 N. W. 1066, 107 A. S. R. 984; Randall v. Newson, 2 Q. B. D. 102, 46 L. J. Q. B. 259, 36 L. T. N. S. 164, 25 W. R. 313, 23 Eng. Rul. Cas. 480 (injury to buyer's horse from

R. C. L. Vol. XXIV.-17. 257

34 Am. Rep. 4 (reviewing a large num-
ber of decisions in this country and in
England); Leavitt v. Fiberloid Co.,
196 Mass. 440, 82 N. E. 682, 15 L.R.A.
(N.S.) 855 (containing extensive re-
view of cases).

Note: 40 Am. Dec. 304.
See the paragraphs following.

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