recoverable, as such loss is not the direct and immediate consequence of the breach; 19 and where the warranty was as to the condition or quality of a safe sold as burglar proof, damages from the loss of valuable articles stolen from the safe by burglars have been held too remote for recovery, in the absence of a showing of fraud.20 On the other hand where the action was for breach of warranty as to the fitness of boxes to be used for packing merchandise, such as tobacco, the resulting injury to the merchandise has been held recoverable,1 and the same is ordinarily true as to loss from leakage of barrels sold by a manufacturer which were on account of defective manufacture unfit for holding the liquids. So where the seller of coal dust is notified that it is to be used in the manufacture of brick, and that if it is mixed with soft coal dust it will damage or destroy the brick, and he warrants that it is not so mixed, and the brick of the buyer are damaged by its use on account of the mixture, such special damages have been held recoverable; and where defective carriage springs were sold to a manufacturer which were placed by him in his carriages, the expense of removing and replacing the same has been held recoverable. Likewise for breach of a warranty that material to be used in manufacture will not ignite in the ordinary course of manufacture, loss of personal property caused by its ignition has been held recoverable. Where potatoes are sold to a dealer with a warranty as to quality, the seller is chargeable with knowledge that they may be mixed by the dealer with other potatoes, and may be held liable for injury to such other potatoes. So where in place of paris green asked for to be used for the purpose of spraying a crop, a different and useless drug was given, special damages resulting from the loss of the crop have been held recoverable. Where the breeding qualities of a stallion were warranted and he proved sterile, in addition to general damages the buyer has been held entitled to recover the expenses incurred in advertising and caring for the stallion during the first

Mass. 440, 82 N. E. 682, 15 L.R.A.
(N.S.) 855.

6. Northern Supply Co. v. Wangard,
123 Wis. 1, 100 N. W. 1066, 107 A. S.
R. 984.

7. Jones v. George, 61 Tex. 345, 48 Am. Rep. 280. The measure of the special damages in this case was held to be the value of the crop just before its destruction, with the cost of the compound and its preparation and application, and interest on the moneys thus expended.

35

As to the damages recoverable for breach of warranty in the sale of seed, see infra, par. 542.

breeding season. Where the quality of material, such as bricks, sold to be used by the buyer in performing a building contract, was warranted, and on account of latent defects the buyer was required to tear down a wall, his loss on this account has been held recoverable as special damages.9

538. Profits or Gains Prevented Generally.-Profits or gains prevented, as well as losses sustained, may be recovered as damages for a breach of contract, where they can be rendered reasonably certain by evidence, and have naturally resulted from the breach,10 and this rule is applied as to damages for breach of a warranty.11 Thus where the article was purchased for the disclosed purpose of resale in another market, the buyer has been permitted to recover as damages the difference between what the article sold for after transportation to such market and what it would have then sold for if it had been as warranted.12 So where a refrigerating plant failed to keep perishable provisions in a good condition as warranted, profits which the buyer would have made from the sale of provisions, which were damaged, have been held recoverable against the objection that the measure of damages is the cost of so changing the refrigerator as to obviate the defect and make it conform to the warranty.13 The mere fact, however, that the buyer on account of the defective condition of the property lost an opportunity to make an advantageous resale has been held not to entitle him to recover the profits he would have made on such resale.14 If the claim for loss of profits is remote and speculative recovery therefor is denied; 15 and it has been said that loss of profits cannot be recovered when the profits are speculative, conjectural, dependent on chances, or have no reference to the nature of the contract and the breach; nor when the damages largely exceed the contract. price, unless such a result was within the contemplation of the

8. Loisseau v. Gates, 31 S. D. 227, 140 N. W. 258, Ann. Cas. 1915D 1157. 9. Gascoigne v. Cary Brick Co., 217 Mass. 302, 104 N. E. 734, Ann. Cas. 1917C 336.

10. See DAMAGES, vol. 8, p. 501 et seq.

11. Wolcott v. Mount, 38 N. J. L. 496, 20 Am. Rep. 425; Passinger v. Thorburn, 34 N. Y. 634, 90 Am. Dec. 753; White v. Miller, 71 N. Y. 118, 27 Am. Rep. 13; Beeman v. Banta, 118 N. Y. 538, 23 N. E. 887, 16 A. S. R. 779; Lewis v. Rountree, 79 N. C. 122, 28 Am. Rep. 309.

Notes: 90 Am. Dec. 760; 52 L.R.A. 233 et seq.; 2 British Rul. Cas. 84.

See supra, par. 340 et seq., as to

recovery of losses incurred, anticipated profits, etc., where the seller fails to make delivery.

12. Lewis v. Rountree, 79 N. C. 122, 28 Am. Rep. 309.

Note: 52 L.R.A. 237.

13. Beeman v. Banta, 118 N. Y. 538, 23 N. E. 887, 16 A. S. R. 779. Note: 52 L.R.A. 234.

14. McAlpin v. Lee, 12 Conn. 129, 30 Am. Dec. 609.

Note: 52 L.R.A. 238.

15. Perine Mach. Co. v. Buck, 90 Wash. 344, 156 Pac. 20, Ann. Cas. 1917C 341.

Notes: 52 L.R.A. 233; 2 British Rul Cas. 83.

§§ 539, 540

SALES

parties. 16 As a general rule it seems the loss of the profits of a business that has been interrupted cannot be recovered unless the parties are shown to have contemplated, or can reasonably be presumed to have contemplated, such loss at the time the contract was made; 17 and this rule has been applied in a number of cases where the warranty was as to the capacity and quality of machinery furnished for a manufacturing plant.'

18

539. Reimbursement for Liabilities Incurred on Resale.-Where the property is sold and purchased by the buyer for resale and is resold by him with a like warranty to that of his seller, special damages recovered by the subpurchaser against the buyer for breach of the latter's warranty may be recovered ordinarily by the buyer from his seller; this rule was announced in England at quite an early date, and has been consistently followed both there and in this country.19 Thus where seed purchased by a dealer with warranty as to kind or the like is resold by him with a like warranty, his right to recover the damages incurred by him on his warranty is upheld.20 In such a case the buyer has been permitted to recover the difference between the value of the crop grown by his customer from the seed and what the crop would have been worth if the seed had been of the proper variety without first adjusting and settling his liability to his customer for such damages. But the liability of the seller cannot be enlarged by warranties inserted by the buyer in his contracts of resale and if the latter's liability to his customer is because his warranty is greater in scope than the warranty of the seller, the incurring of such liability is not a proper subject of special damages, as where the original sale of fertilizer contained a warranty of ingredients only and the buyer resold with a broad warranty of good and efficient result from use of the fertilizer.

540. Injury to Business.-It would seem that, as in case of fraud, if goods are sold to a merchant for resale, with warranty of quality,

16. Moulthrop v. Hyett, 105 Ala. of a breach of his warranty, see supra, par. 435. 493, 17 So. 32, 53 A. S. R. 139.

17. New York, etc., Min. Syndicate v. Fraser, 130 U. S. 611, 9 S. Ct. 665, 32 U. S. (L. ed.) 1031; Wellingham v. Hooven, 74 Ga. 233, 58 Am. Rep. 435. Notes: 52 L.R.A. 233; 2 British Rul. Cas. 83.

18. Moulthrop v. Hyett, 105 Ala. 493, 17 So. 32, 53 A. S. R. 139.

20. Buckbee v. P. Hohenadel, Jr. Co., 224 Fed. 14, 139 C. C. A. 478, Ann. Cas. 1918B 88, L.R.A.1916C 1001; Passinger v. Thorburn, 34 N. Y. 634, 90 Am. Dec. 753.

1. Buckbee v. P. Hohenadel, Jr. Co., 224 Fed. 14, 139 C. C. A. 478, Ann. Cas. 1918B 88, L.R.A.1916C 1001. As to the measure of damages for breach 19. Passinger v. Thorburn, 34 N. of warranty of seed, see infra, par. Y. 634, 90 Am. Dec. 753.

Note: 52 L.R.A. 233.

Note: 23 Eng. Rul. Cas. 571.

As to the effect of a judgment recovered against the buyer by a subpurchaser as evidence against the seller

260

542.

2. Hampton Guano Co. v. Hill LiveStock Co., 168 N. C. 442, 84 S. E. 774, L.R.A.1915D 875.

damages resulting to the buyer's general business from his resale of the goods which were of a very inferior quality may be recoverable as special damages, as where the seller warranted as harmless a coloring matter sold to an ice cream dealer when in fact it contained poisonous matter, and this resulted in a serious injury to his business.* It has been held, however, that damages of this character, if recoverable at all, should be alleged with special particularity and cannot be recovered under a general allegation that the buyer had suffered this class of damages. The question as to whether the buyer may recover for loss of profits from the interruption of his business is discussed above.R

7

541. Personal Injuries.—It has been held in a number of cases that personal injuries received by the buyer on account of defects in the chattel sold covered by the seller's warranty may constitute an element of special damages, where the injuries result from the use of the chattel in the manner contemplated; that such damages are not necessarily too remote, but may properly be considered as resulting in the natural and usual course of things from the breach and reasonably within the contemplation of the parties; and that negligence on the part of the seller, which itself may constitute an independent ground for liability, is not essential. This would seem to be especially true as regards the breach of a warranty that food sold for domestic consumption is wholesome and fit for food, when the buyer is made sick by partaking thereof; 10 and it is held that where a wife is made ill by reason of the unwholesomeness of food purchased by the husband for domestic consumption, he may recover at common law for the expenses he is put to thereby and for the loss of her services. or consortium.11 In England it has been held in a recent well con

3. Swain v. Schieffelin, 134 N. Y. 471, 31 N. E. 1025, 18 L.R.A. 385, distinguishing Crain v. Petrie, 6 Hill (N. Y.) 522, 41 Am. Rep. 765. See also Nieman v. Channellene Oil, etc., Co., 122 Minn. 11, 127 N. W. 394, 140 A. S. R. 458. See also Mazetti v. Armour, 75 Wash. 622, 135 Pac. 633, Ann. Cas. 1915C 140, 48 L.R.A. (N.S.) 213. See infra, par. 644, as to fraud. 4. Swain v. Schieffelin, 134 N. Y. 471, 31 N. E. 1025, 18 L.R.A. 385.

5. Cunningham v. Smith, 10 Grat. (Va.) 255, 60 Am. Dec. 333. See also Ogden v. Beatty, 137 Pa. St. 197, 20 Atl. 620, 21 A. S. R. 862.

6. See supra, par. 538.

7. Tyler v. Moody, 111 Ky. 191, 63 S. W. 433, 98 A. S. R. 406, 54 L.R.A. 417; Gearing v. Berkson, 223 Mass.

257, 111 N. E. 785, L.R.A.1916D 1006. Notes: 3 L.R.A. (N.S.) 1047; 5 Ann. Cas. 588.

8. See infra, par. 800 et seq.

9. Tyler v. Moody, 111 Ky. 191, 63 S. W. 433, 98 A. S. R. 406, 54 L.R.A. 417; Gearing v. Berkson, 223 Mass. 257, 111 N. E. 785, L.R.A.1916D 1006. Note: 3 L.R.A. (N.S.) 1048.

10. Doyle v. Fuerst, 129 La. 838, 56 So. 906, Ann. Cas. 1913B 1110, 40 L.R.A. (N.S) 480 and note; Gearing v. Berkson, 223 Mass. 257, 111 N. E. 785, L.R.A.1916D 1006.

Notes: 16 Ann. Cas. 497; Ann. Cas. 1913B 1110.

11. Jackson v. Watson, [1909] 2 K. B. 193, 78 L. J. K. B. 587, 100 L. T. N. S. 799, 25 Times L. Rep. 454, 53 Sol. J. 447, 16 Ann. Cas. 492 and note;

sidered case that where the sickness results in the wife's death damages for the loss of her services as well as funeral and medical expenses incident to her sickness may be recovered in an action for breach of warranty, as such an action is not within the common law rule that no right of action arises out of a wrongful act causing death, which should be limited to cases where the action is grounded in tort.12 Where defective machinery is sold with warranty, the parties contemplating its personal use by the buyer, personal injuries received in its use and caused by a defect covered by the warranty is ordinarily recoverable, as where a gas machine was sold with warranty that it was safe and would not explode; 18 and the seller of machinery or the like has also been held liable to reimburse the buyer for damages recovered against him by an employce injured on account of a defect in the machinery.14 On the other hand it has been held that, though, if the warranty is special, personal injuries resulting from its breach may constitute a proper element of damages, such damages are not in all cases recoverable.15 And it has been held that the fact that a farm machine does not fulfil a general warranty that it is well made, of good material, and durable, does not render the seller liable for personal injuries to the buyer, caused by its breaking and failing to operate properly.16

3 Brit. Rul. Cas. 182 and note. As to the general right of a husband to sue for the loss of his wife's services or consortium, see HUSBAND AND WIFE, vol. 13, p. 1411 et seq.

12. Jackson v. Watson, [1909] 2 K. B. 193, 78 L. J. K. B. 587, 100 L. T. N. S. 799, 25 Times L. Rep. 454, 53 Sol. J. 447, 16 Ann. Cas. 492, 3 Brit. Rul. Cas. 182 and note.

Note: 15 Ann. Cas. 1083.

As regards actions ex contractu in which the death of a person is involved as an element of damages, see generally, DEATH, vol. 8, pp. 721-722.

13. Tyler v. Moody, 111 Ky. 191, 63 S. W. 433, 98 A. S. R. 406, 54 L.R.A. 417.

14. Boston, etc., Rubber Co. v. Kendall, 178 Mass. 232, 59 N. E. 657, 86 A. S. R. 478, 51 L.R.A. 781. See also Dushane v. Benedict, 120 U. S. 630, 7 S. Ct. 696, 30 U. S. (L. ed.) 810. Notes: 3 L.R.A. (N.S.) 1049; 5 Ann. Cas. 589.

In Edge Moor Iron Co. v. Brown Hoisting Mach. Co., 6 Penn. (Del.) 10, 62 Atl. 1054, 4 L.R.A. (N.S.) 858,

it is held that a buyer of machinery cannot recoup against the purchase price the amount which he has paid, without suit, though apparently under a threat of suit, for personal injuries to a servant because the machinery did not fill the warranty. The court, owever, expressly leaves undecided the question whether such damages are recoverable in an action on the warranty, placing its decision on the express ground that it is not a proper case for recoupment, as the question whether in fact the buyer was liable for the injuries to his servant should not upon principle or convenience in practice be tried under a notice of recoupment. As to the general right to recoup damages for breach of warranty in an action for the price, see supra, par. 373.

15. Notes: 3 L.R.A. (N.S.) 1048; 5 Ann. Cas. 589.

16. Birdsinger v. McCormick Harvesting Mach. Co., 183 N. Y. 487, 76 N. E. 611, 5 Ann. Cas. 586, 3 L.R.A. (N.S.) 1047.