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.13 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.1 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." 2 545. 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; 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 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. Note: 34 L.R.A. (N.S.) 698. 7. Sapp v. Bradfield, 137 Ky. 308, 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. 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.9 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 § 547 SALES cultivate the land could not be had on the market, or, if they could be had, that the buyer was unable to buy them, and that such facts were within the knowledge of the seller.14 So, where the warranty is as to the breeding qualities of an animal it is generally held that loss of profits which might have been made if the animal had been fit for such purpose is too speculative to be recoverable, though in a few cases damages of this character have been allowed.15 547. Mitigation and Enhancement of Damages.-The general rule of damages that the plaintiff must take reasonable steps to prevent loss from the breach of contract by the defendant and a fortiori must not by his own negligence enhance the damages 16 has been applied in actions for breach of warranty.17 Thus, where whisky barrels are sold by a manufacturer, if the buyer with knowledge that they are defective and unfit for the purpose intended of holding and storing whisky should nevertheless use them for such purpose he could not recover as damages the value of the whisky lost on this account, but the mere fact that the buyer knew that a few of the barrels were defective does not necessarily render him negligent in using the remainder if they are not openly defective, so as to prevent his recovery for whisky lost by their use. 18 So a buyer who has placed potatoes purchased with warranty of quality with others and discovers that the whole lot is beginning to rot on account of the defective quality of those warranted should use reasonable diligence to separate the rotten from the good potatoes.19 Also a purchaser of an apparatus warranted to be free from defects assumes the risk of loss or injury if, after discovering the defect and being notified by the manufacturer of the way to remedy it at slight cost, he continues the use of the apparatus without remedying the defect or notifying the manufacturer that he has not done so.20 It has been held that if a first class boilermaker makes a boiler for a manufacturer to be used for certain purposes, and delivers it with a patent defect, he is liable to the manufacturer for the damages paid by the latter to his employees for injuries resulting from the defect, although the manufacturer was negligent to the extent of rendering him liable to his employees in using the machine without inspection, as the buyer did not owe the same duty to the seller to inspect the boiler to discover defects as he 14. Wiggins v. Jackson, 31 Okla. 292, 121 Pac. 662, 43 L.R.A. (N.S.) 153. 15. Note: 43 L.R.A. (N.S.) 153-154. 16. See DAMAGES, vol. 8, p. 442 et seq. 17. Poland v. Miller, 95 Ind. 387, 48 Am. Rep. 730; Cedar Rapids, etc., Ry., etc., Co. v. Sprague Electric Co., 280 Ill. 386, 117 N. E. 461, L.R.A. 1918B 200 and note; Sapp v. Brad 268 field, 137 Ky. 308, 125 S. W. 721, 136 A. S. R. 291; Northern Supply Co. v. Wangard, 123 Wis. 1, 100 N. W. 1066, 107 A. S. R. 984. Note: 34 L.R.A. (N.S.) 699. 18. Poland v. Miller, 95 Ind. 387, 48 Am. Rep. 730. 19. Northern Supply Co. v. Wangard, 123 Wis. 1, 100 N. W. 1066, 107 A. S. R. 984. 20. Cedar Rapids, etc., Ry., etc., owed to his employees, and could rely as against the seller on his warranty that the boiler was not defective.1 Ordinarily the question whether the seller has been negligent in using the article for the purpose intended is one for the determination of the jury. 548. Warranty of Title; General Damages. In case of a breach of a warranty of title in the conveyance of real estate, the rule adopted in most jurisdictions is that the measure of damages is the consideration paid with interest from the time of eviction, and this rule is held in a number of jurisdictions to apply as regards a warranty of the title to chattels, as the rule of damages in both cases should be the same, and this has been held true though the price paid was greater than the value. For this reason it has been held, in the case of a sale of corporate stock where judgment was recovered against the buyer by the true owner for the value of the stock and the dividends received by the buyer thereon which was satisfied by a surrender of the stock and dividends, that the seller was not liable for such amount but only for the price paid to him by the buyer with interest. On the other hand it is said that the rule as to land stands on peculiar reasons, which were thought to control the usual measure of damages in the personal action of covenant, which is held to lie on a warranty. And on principle it would seem that the buyer should be permitted to recover as general damages the difference in the actual value of the chattel and the price if unpaid or the actual value of the chattel if the price has been paid, and this is the view taken in a number of cases.8 This is merely carrying out the general rule that the buyer is entitled to recover as general damages the difference between the actual value of the article and what it would have been worth if it had been as warranted. So where a single bill of chattels is sold and title fails as to a portion, the measure of damages is, according to the better view, the difference between the value of the entire quantity and the value of Co. v. Sprague Electric Co., 280 Ill. 386, 117 N. E. 461, L.R.A.1918B 200 and note. 1. Boston, etc., Rubber Co. v. Kendall, 178 Mass. 232, 59 N. E. 657, 86 A. S. R. 478, 51 L.R.A. 781. 2. Poland v. Miller, 95 Ind. 387, 48 Am. Rep. 730. 3. See COVENANTS, vol. 7, p. 1167 et seq. 4. Morgan v. Hendrie, 34 Colo. 25, 81 Pac. 700, 7 Ann. Cas. 935; Smith v. Williams, 117 Ga. 782, 45 S. E. 394, 97 A. S. R. 220. See Bevan v. Muir, 53 Wash. 54, 101 Pac. 485, 32 L.R.A.(N.S.) 588. Notes: 53 Am. Rep. 788; 7 Ann. Cas. 937; Ann. Cas. 1912B 1340. 5. Note: 53 Am. Rep. 788. 6. Morgan v. Hendrie, 34 Colo. 25, 81 Pac. 700, 7 Ann. Cas. 935. 7. Gant v. Hunsucker, 34 N. C. 254, 55 Am. Dec. 408. 8. Hoffman v. Chamberlain, 40 N. J. Eq. 663, 5 Atl. 150, 53 Am. Rep. 783; Cary v. Gruman, 4 Hill (N. Y.) 625, 40 Am. Dec. 299; Gant v. Hunsucker, 34 N. C. 254, 55 Am. Dec. 408. But see Case v. Hall, 24 Wend. (N. Y.) 102, 35 Am. Dec. 605. Note: 53 Am. Rep. 788. 9. Hoffman v. Chamberlain, 40 N. J. Eq. 663, 5 Atl. 150, 53 Am. Rep. 783. See supra, par. 532, as to general rule. |