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542. Warranty of Seed.-Special damages resulting from the breach of a warranty as to the quality or kind of seed sold naturally resulting from the breach are recoverable.17 Where the breach of the warranty is in respect to the kind of seed sold for raising a crop and the crop raised is for such reason inferior to the crop which would have been raised if the seed had been as warranted, the buyer is held entitled to recover, according to what seems to be the better view, the difference between the value of the crop raised and the value of a crop which would ordinarily have been raised if the seed had been as warranted.18 A similar result is reached where the warranty is that seed sold for planting will germinate and the buyer has been permitted to recover the damages resulting from his inability to raise a crop on account of the seed not being fertile.19 And on principle this would include the value of the crop which would have been raised if the seed had proved fertile, without deduction of the cost of planting and preparing the ground to receive the seed, as this expense having been incurred and lost by the buyer a second deduction therefor should not be made from the value of the anticipated crop; but the expense of further cultivation, harvesting, and marketing the crop, which it would have been necessary to incur, should, it would seem, be deducted. In some jurisdictions a recovery for the value of the anticipated crop as an element of special damages is denied. In

17. Note: 37 L.R.A. (N.S.) 85. 18. Buckbee v. P. Hohenadel, Jr. Co., 224 Fed. 14, 139 C. C. A. 478, Ann. Cas. 1918B 88, L.R.A.1916C 1001; Dunn v. Bushnell, 63 Neb. 568, 88 N. W. 693, 93 A. S. R. 474; Wolcott v. Mount, 38 N. J. L. 496, 20 Am. Rep. 425, affirming 36 N. J. L. 262, 13 Am. Rep. 438; Passinger v. Thorburn, 34 N. Y. 634, 90 Am. Dec. 753; Van Wyck v. Allen, 69 N. Y. 61, 25 Am. Rep. 136; White v. Miller, 71 N. Y. 118, 27 Am. Rep. 13; White v. Miller, 78 N. Y. 393, 34 Am. Rep. 544; Ford v. Farmers' Exchange, 136 Tenn. 287, 189 S. W. 368, L.R.A.1917B 1106; Fuhrman v. Interior Warehouse Co., 64 Wash. 159, 116 Pac. 666, 37 L.R.A.(N.S.) 89.

Notes: 42 A. S. R. 129; 18 L.R.A. 386; 52 L.R.A. 235; 37 L.R.A. (N.S.) 87; L.R.A.1916C 1013; Ann. Cas. 1918B 83; 6 Eng. Rul. Cas. 625.

Am. Dec. 753; Van Wyck v. Allen, 69 N. Y. 61, 25 Am. Rep. 136; Fuhrman v. Interior Warehouse Co., 64 Wash. 159, 116 Pac. 666, 37 L.R.A. (N.S.) 89. See also Shaw v. Smith, 45 Kan. 334, 25 Pac. 886, 11 L.R.A. 681.

Notes: 18 L.R.A. 386; 52 L.R.A. 235; 37 L.R.A. (N.S.) 87.

1. Van Wyck v. Allen, 69 N. Y. 61, 25 Am. Rep. 136, explaining and limiting rule laid down in Passinger v. Thorburn, 34 N. Y. 634, 90 Am. Dec. 753; Fuhrman v. Interior Warehouse Co., 64 Wash. 159, 116 Pac. 666, 37 L.R.A. (N.S.) 89.

2. Fuhrman v. Interior Warehouse Co., 64 Wash. 159, 116 Pac. 666, 37 L.R.A. (N.S.) 89.

3. Butler v. Moore, 68 Ga. 780, 45 Am. Rep. 508 (expressly disapproving New York and New Jersey cases cited supra); Shaw v. Smith, 45 Kan. 19. Dunn v. Bushnell, 63 Neb. 568, 334, 25 Pac. 886, 11 L.R.A. 681; Rei88 N. W. 693, 93 A. S. R. 474; Pas- ger v. Worth, 127 N. C. 230, 37 S. E. singer v. Thorburn, 34 N. Y. 634, 90 217, 80 A. S. R. 798, 52 L.R.A. 362

these jurisdictions where the attempt is made to arrive at the actual loss of the buyer, the statements as to the element and extent of damages recoverable, especially where the seed proved worthless, have not always been in accord. Thus where the warranty was as to fertility and the seed proved wholly worthless, and at the time of the discovery of its character it was too late to plant another crop of its kind, the measure of damages has been held to be the amount which was paid for the seed, the amount expended in the preparation of the soil and for planting the seed, and a reasonable rent for the land, less the amount for which the land might have been rented for some other crop. Again, where the seed proved worthless the measure of damages was held to be the price of the seed with interest, the expense of cultivation in planting the seed, and the like; and has also been said to be the cost of the seed, the value of the labor in preparing the ground for it and in planting it, and the interest on these sums, less the general benefit of the labor to the land. If the buyer at the time of planting the seed knew that it did not conform to the warranty, he will not be permitted to recover special damages resulting from the failure of his crop or the like; but this would not preclude him from recovering as general damages the difference in the actual value of the seed and what it would have been worth if it had been as warranted." Where the warranty is against the seed containing noxious weed seeds the damages from loss due to the contamination of the crop and the land thereby may be recovered.10 The seller of seeds may expressly limit the extent of his liability for breach of warranty. And where the warranty was in effect that the seed would test satisfactorily as to fertility, and that, if on being tested it proved otherwise the price would be returned, it has been held that the seller was not liable for the loss of the buyer's crop due to the nonfertility of the seed which he planted without testing.11

543. Warranty of Nursery Stock Generally.-A warranty as to the kind or quality of seed sold and one as to nursery stock such as fruit trees are not on the same identical footing as regards the damages recoverable for a breach.12 It is the generally recognized rule in

(disapproving English and New York cases to the contrary).

Notes: 20 Am. Rep. 430; 52 L.R.A. 236; 37 L.R.A. (N.S.) 87; Ann. Cas. 1918B 84; 6 Eng. Rul. Cas. 626.

4. Note: 37 L.R.A. (N.S.) 87.

5. Reiger v. Worth, 127 N. C. 230, 37 S. E. 217, 80 A. S. R. 798, 52 L.R.A. 362.

6. Butler v. Moore, 68 Ga. 780, 45 Am. Rep. 508.

Note: Ann. Cas. 1918B 84. 7. Note: 20 Am. Rep. 430.

8. Dunn v. Bushnell, 63 Neb. 568, 88 N. W. 693, 93 A. S. R. 474. Note: 37 L.R.A. (N.S.) 85.

9. Dunn v. Bushnell, 63 Neb. 568, 88 N. W. 693, 93 A. S. R. 474.

Note: 37 L.R.A. (N.S.) 86.

10. Notes: 37 L.R.A. (N.S.) 88; L.R.A.1916C 1014; Ann. Cas. 1918B

86.

11. Slinger v. Totten, 38 S. D. 249, 160 N. W. 1008, L.R.A.1917C 529.

12. Heilman v. Pruyn, 122 Mich. 301, 81 N. W. 97, 80 A. S. R. 570.

regard to the latter kind of warranty that the buyer is entitled to recover, where the trees are bought for planting and prove worthless, the value which would have been added to his premises, when the breach is discovered, or should have been discovered by the exercise of ordinary care, if the trees had been of the proper variety and quality.18 In such a case the rule of damages ought to be, and is, the same where worthless fruit trees are furnished, contrary to the warranty, as where good fruit trees are destroyed by the negligent acts of others. The buyer has suffered the same damages in each case. Both parties must be held to have contracted with reference to the land in future years, as it would be enhanced by the existence of trees of the kind warranted.14 If the breach is as to the condition of fruit trees which for that reason failed to live, the damages are not to be limited to the purchase price without reimbursement to the buyer of the expenses incurred in their planting, etc.15 If the warranty goes merely to variety, the stock furnished not being wholly worthless, the damages are to be ascertained by proving the value of the land occupied by the trees at the time when the breach of the warranty was discovered through their bearing fruit, and deducting the sum so ascertained from the value the same land would have had at the same time if the trees ordered had been planted and cultivated.16 As affecting the damages recoverable it has been held immaterial that after the commencement of the action the fruit trees were killed by extreme cold weather and for this reason that the buyer had in fact suffered no actual damages, because the trees would have been killed if they had been of the proper variety. The rights of the parties were to be determined by the situation of affairs at the commencement of the suit, and consequently if, by the act of God afterward, the trees were destroyed, this fact furnishes no defense.17 A distinction has been made in the measure of damages for nonconformity to variety in the case of nursery stock perennial in their nature but short lived and quick maturing and ordinary orchard trees; 18 and it has been held that the damages for breach of warranty that strawberry plants, which do not bear the first year, are true to name are the difference between

See the preceeding paragraph as to damages recoverable for breach of warranty as to seed.

13. Shearer v. Park Nursery Co., 103 Cal. 415, 37 Pac. 412, 42 A. S. R. 125; Heilman v. Pruyn, 122 Mich. 302, 81 N. W. 97, 80 A. S. R. 570; Long v. Pruyn, 128 Mich. 57, 87 N. W. 88, 92 A. S. R. 443; Reiger v. Worth, 127 N. C. 230, 37 S. E. 217, 80 A. S. R. 798, 52 L.R.A. 362.

Notes: 92 A. S. R. 446; 49 L.R.A. (N.S.) 1155; 23 Eng. Rul. Cas. 572.

14. Heilman v. Pruyn, 122 Mich. 301, 81 N. W. 97, 80 A. S. R. 570.

15. Grisinger v. Hubbard, 21 Idaho 469, 122 Pac. 856, Ann. Cas. 1913E 87.

16. Shearer v. Park Nursery Co., 103 Cal. 415, 37 Pac. 412, 42 A. S. R. 125.

17. Heilman v. Pruyn, 122 Mich. 301, 81 N. W. 97, 80 A. S. R. 570. See also Long v. Pruyn, 128 Mich. 57, 87 N. W. 88, 92 A. S. R. 443.

18. Note: 49 L.R.A. (N.S.) 1155.

the value of the crop produced the first bearing year and what it would have been had the plants been as warranted, plus the cost of replacing the plants and of cultivating them during the nonbearing year, 19

544. Limitation of Liability by Contract.-A nurseryman may provide in the contract for liquidated damages for breach of his warranty, or by language unmistakable in terms and susceptible of comprehension by the buyer relieve himself of any liability under the contract of sale for nonconformity to name or the like.20 Such a limitation of liability must, however, be clearly expressed to be effective, and it has been held that the seller does not relieve himself from liability for special damages by a provision that any stock which does not prove to be true to name as labeled is to be replaced free or purchase price refunded.1 It has also been held that the remedy for a breach of warranty of quality, based on the fact that the trees warranted were of such poor quality that they did not live, is not affected by a provision that "all stock that fails to live to be replaced at half price."

545. Warranty of Soundness of Animal or Slave Generally.-The rule that the general damages is the difference between the actual nature of the chattel and what it would have been worth if as warranted applies of course to the sale of animals in case of a breach. of a warranty of soundness; 3 in addition to this, however, special damages resulting as a natural consequence of the breach may be recovered. Thus though the contrary view has been taken, ordinarily where an animal is sold with warranty of soundness, reasonable expenses incurred by the buyer, by reason of its infection with a disease, in attempting to effect a cure, are held recoverable, as this is but an effort to lessen the damage, and, as such, it is a duty the buyer owes the seller. If the fort is successful, the seller is benefited; if it is unsuccessful, the buyer ought not to have to suffer for having made the effort, provided it was honestly made and the expense was such as a reasonable man would have incurred. Where animals infected with a contagious disease are sold and such fact is fraudu

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19. Smeltzer v. Tippin, 109 Ark. 275, 160 S. W. 221, 49 L.R.A. (N.S.) 1156.

20. Note: 49 L.R.A. (N.S.) 1153. 1. Sanford v. Brown Bros. Co., 208 N. Y. 90, 101 N. E. 797, 50 L.R.A. (N.S.) 778.

Note: 49 L.R.A. (N.S.) 1153. 2. Note: 49 L.R.A. (N.S.) 1153. 3. Joy v. Bitzer, 77 Ia. 73, 41 N. W. 575, 3 L.R.A. 184; Cary v. Gruman, 4 Hill (N. Y.) 625, 40 Am. Dec. 299; Smith v. Green, 1 C. Pl. 92, 45

L. J. C. Pl. 28, 33 L. T. 572, 24 W.
R. 142, 23 Eng. Rul. Cas. 566.

Note: 34 L.R.A.(N.S.) 698.
4. Note: 34 L.R.A. (N.S.) 699.
5. Note: 34 L.R.A. (N.S.) 698, 700.
6. Joy v. Bitzer, 77 Ia. 73, 41 N.
W. 575, 3 L.R.A. 184; Sapp v. Brad-
field, 137 Ky. 308, 125 S. W. 721, 136
A. S. R. 291; Volland v. Baker, 32
Neb. 391, 49 N. W. 381, 13 L.R.A. 140.
Notes: 49 Am. Dec. 305; 34 L.R.A.
(N.S.) 699.

7. Sapp v. Bradfield, 137 Ky. 308,

L

lently concealed by the seller, it is generally recognized that, in an action for the fraud, the seller may recover for consequential damages resulting from the communication of the disease to other animals owned by him.8 And likewise where animals infected with a contagious disease are sold with knowledge that they are to be placed by the buyer with his other animals, damages from the loss of such other animals from contracting the disease are held recoverable in an action for breach of a warranty of soundness or freedom from disease. And this has been held true, as regards a general warranty of soundness, though the seller did not in fact know that the animal sold was infected with a contagious disease, as this is a natural consequence of the breach of the warranty which covers contagious as well as noncontagious diseases, and unknown as well as known defects.10 If the buyer is negligent in permitting the diseased animals to mingle with his other stock this will preclude his recovery for disease thereby communicated.11

546. Loss of Profits from Inability to Use Animal.-It seems to be clear that special damages, such as loss of profit from inability to use horses purchased with a warranty, cannot be recovered save in exceptional cases where such profits are within the contemplation of the parties, are the proximate result of the breach of warranty, and can be ascertained with reasonable certainty.12 Thus where a horse was sold with a warranty that he was a sound and able and good work horse, and suitable for use in logging operations, it was held that profits alleged to have been lost because the horse was so diseased that he could not be used in the logging operations were not such special damages as were the natural and proximate consequences of the breach.13 And the same rule has been applied where a team of horses was purchased by a farmer; and damages resulting from his inability to cultivate his land have been held too remote to be recovered, especially where there was no allegation that other horses with which to

125 S. W. 721, 136 A. S. R. 291. See infra, par. 547, as to the duty of the buyer to attempt to mitigate the damages resulting from a breach of warranty.

8. See infra, par. 644.

9. Smith v. Green, 1 C. P. D. 92, 45 L. J. C. Pl. 28, 33 L. T. 572, 24 W. R. 142, 23 Eng. Rul. Cas. 566. See also Dushane v. Benedict, 120 U. S. 630, 7 S. Ct. 696, 30 U. S. (L. ed.) 810.

Notes: 40 Am. Dec. 305; 15 Ann. Cas. 1008; 3 Eng. Rul. Cas. 137; 6 Eng. Rul. Cas. 618.

10. Joy v. Betzer, 77 Ia. 73, 41 N. W. 575, 3 L.R.A. 184 (Reed, Ch.

J., dissenting on the ground that the
seller is not liable for such damages
in case of a general warranty of
soundness though he would be so
liable if the warranty was specially
against infection with contagious
disease). See also Volland v. Baker,
32 Neb. 391, 49 N. W. 381, 13 L.R.A.
140; Smith v. Green, 1 C. P. D. 92,
45 L. J. C. Pl. 28, 33 L. T. 572, 24
W. R. 142, 23 Eng. Rul. Cas. 566.
Note: 34 L.R.A. (N.S.) 699.
11. Note: 34 L.R.A. (N.S.) 700.
12. Note: 43 L.R.A. (N.S.) 153.
13. Sapp v. Bradfield, 137 Ky. 308,
125 S. W. 721, 136 A. S. R. 291.

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