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pended in reasonable efforts to make warranted goods conform to the just requirement of the buyer may be recovered for.93 Injury caused by using warranted goods in manufacturing other articles is recoverable unless the buyer was negligent or unreasonable in failing to discover the defects before using the goods.94 Where seeds are bought with a warranty, the loss or diminished value of the crop may be included in damages recovered,95 though in some cases where there is a total failure of the crop to germinate, a measure of damages based on the plaintiff's outlay rather than on his probable return, has been applied.96 Where defective trees are sold, the seller, if the defect is a breach of warranty, is liable for the difference between the value of the land with such trees as were promised and with inferior trees, or no trees if the trees fail to grow.97 On the peter, 133 Wis. 112, 113 N. W. 435.

93 Adams Mach. Co. v. Castleberry, 92 Ark. 310, 122 S. W. 998; Fox v. Stockton Harvester Works, 83 Cal. 333, 23 Pac. 295; Whitehead Machine Co. v. Ryder, 139 Mass. 366, 31 N. E. 736. Cf. Southern Gas &c. Co. v. Peveto (Tex. Civ. App.), 150 S. W. 279.

94 Smith v. Johnson, 15 T. L. R. 179; Bagley v. Cleveland Rolling Mill, 21 Fed. 159; Nye v. Snyder, 56 Neb. 754, 77 N. W. 118; Smith v. Foote, 81 Hun, 128, 30 N. Y. S. 679; Wait v. Borne, 123 N. Y. 592, 25 N. E. 1053; Griffin v. Metal Product Co., 264 Pa. 254, 107 Atl. 713.

95 Randall v. Raper, E. B. & E. 84; Buckbee v. P. Hohenadel, Jr., Co., 224 Fed. 14, 139 C. C. A. 478; L. R. A. 1916 C. 1001; Crutcher v. Elliott, 13 Ky. L. Rep. 592; Haycroft v. Walden, 14 Ky. L. Rep. 892; Moorhead v. Minneapolis Seed Co., 139 Minn. 11, 165 N. W. 484, L. R. A. 1918 C. 391; Grafton-Stamps Drug Co. v. Williams, 105 Miss. 296, 62 So. 273; Cline v. Mock, 150 Mo. App. 431, 131 S. W. 710; Wolcott v. Mount, 36 N. J. L. 262, 13 Am. Rep. 438, 38 N. J. L. 496, 20 Am. Rep. 425; White

v. Miller, 71 N. Y. 118, 27 Am. Rep. 13; Landreth v. Wycoff, 67 N. Y. App. Div. 145, 73 N. Y. S. 388; Depew v. Peck Hardware Co., 121 N. Y. App. D. 28, 105 N. Y. S. 390, affd. 197 N. Y. 528, 90 N. E. 1158; Reiger v. Worth, 127 N. C. 230, 37 S. E. 217, 52 L. R. A. 362. But see Butler v. Moore, 68 Ga. 780, 45 Am. Rep. 508; Hurley v. Buchi, 10 Lea, 346; Hoopes v. East, 19 Tex. Civ. App. 531; American Warehouse Co. v. Ray (Tex. Civ. App.), 150 S. W. 763. In Stewart v. Sculthorp, 25 Ont. 544, the plaintiff was not allowed recovery for damages due to impurities mixed with seed which caused noxious weeds to spring up. Cf. McMullen v. Free, 13 Ont. 57.

See supra, § 1341.

97 Shearer v. Park Nursery Co., 103 Cal. 415, 37 Pac. 412, 42 Am. St. Rep. 125; Long v. Pruyn, 128 Mich. 57, 87 N. W. 88, 92 Am. St. Rep. 443; Sanford v. Brown Bros. Co., 134 N. Y. App. Div. 652, 119 N. Y. S. 333. Other cases involving the recovery of consequential damages are Hodge v. Tufts, 115 Ala. 366, 22 So. 422; Alpha Checkrower Co. v. Bradley, 105 Iowa, 537, 75 N. W. 369; Kester v. Miller, 119 N. C. 475, 26 S. E. 115; Aultman v.

other hand, it has been held that damages for breach of a warranty of a wagon could not include compensation for the death of a horse which was due to a defect in the wagon.98

§ 1394. Further illustrations.

The general principle allowing consequential damages naturally resulting from a breach of warranty is not much disputed, but the question of what consequential damages are too remote is not always decided in the same way. Especially where personal injury to a third person is caused by the defect in the warranted article, and the buyer is compelled to pay damages to the person injured, it is disputed whether the buyer can recover these damages from the seller. By the weight of authority he is allowed to do so, and this result seems correct, at least if the defect in the thing sold was of a sort likely to cause the injury which in fact took place." The principle does not seem essentially different where the injury is to the buyer himself.

McDonough, 110 Wis. 263, 85 N. W. 980; Fisher v. Bertram, 100 Ill. App. 542; Union Bank v. Blanchard, 65 N. H. 21, 18 Atl. 90; Halstead Lumber Co. v. Sutton, 46 Kans. 192, 26 Pac. 444; Punteney-Mitchell Mfg. Co. . T. G. Northwall Co., 66 Neb. 5, 91 N. W. 863; Leavitt v. Fiberloid Co., 196 Mass. 440, 82 N. E. 682, 15 L. R. A. (N. S.) 855. See also Randall v. Newson,2 Q. B. D. 102; McDonald v. Kansas City Bolt Co., 149 Fed. 360, 79 C. C. A. 298, 8 L. R. A. (N. S.) 1110; Burr v. Redhead Co., 52 Neb. 617, 72 N. W. 1058.

"Schurmeier v. English, 46 Minn. 306, 48 N. W. 1112. Compare this decision with Randall v. Newson, 2 Q. B. D. 102, where the seller of a carriage pole was held liable for injury to the buyer's horses caused by the defective condition of the pole. See further as questioning the buyer's right to consequential damages, Herring v. Skaggs, 62 Ala. 180, 34 Am. Rep. 4, 73 Ala. 446; Jones v. Ross, 98 Ala. 448, 13 So. 319.

99 In Mowbray v. Merryweather, [1895] 2 Q. B. 640, the defendant who had agreed to supply the plaintiff with apparatus for unloading a cargo from a ship belonging to the defendant, which the plaintiff had contracted to unload, furnished a defective chain which broke and injured a person in the plaintiff's employ. The plaintiff settled his liability with the injured person and was allowed to recover for the money thus paid. Similar decisions are Vogan v. Oulton, 81 L. T. (N. S.) 435; Boston Woven Hose Co. v. Kendall, 178 Mass. 232, 59 N. E. 657, 51 L. R. A. 781, 86 Am. St. Rep. 478. On the other hand, in Rode v. Arney, 115 Ill. App. 629, where the buyer's wife was injured owing to breach of warranty of a wagon, it was held that the buyer could not recover for loss of his wife's services, on the ground that the damage was not such as to reasonably have been anticipated.

If there is a difference, the liability of the seller seems clearer; but even in this case some courts hold that the damages are too remote. It is beyond the scope of this work to consider the liability of a manufacturer in tort for negligence for injuries caused by defects in goods of his manufacture. It is enough to say that this question is one that must be separately considered. What consequential damages are too remote is a question of degree. A few illustrations may be given of cases where the damage was held too remote. Damages due to the diminished value of patents belonging to the buyer and the loss of profits from other contracts owing to defective cement used by the buyer in a building were held too remote.3 Expected profits, unless they very plainly would have been made, are not allowable. The expense of erecting a building for ma

In Jones v. Ross, 98 Ala. 448, 13 So. 319, the buyer bought a horse by which he was injured. He was not allowed to recover on the theory that his njury was due to the failure of the horse to comply with the seller's warranty without proof of a scienter. So in Birdsinger v. McCormick Machine Co., 183 N. Y. 487, 76 N. E. 611, 3 L. R. A. (N. S.) 1047, a buyer of an agricultural machine was not allowed to recover for injuries which he suffered owing to the defects in the warranted machine.

Two

judges dissented. This decision seems opposed to two earlier decisions of the Appellate Division of the New York Supreme Court (Bruce v. Fiss Horse Co., 47 N. Y. App. Div. 273, 62 N. Y. S. 96; Wood v. Anthony, 79 N. Y. App. Div. 111, 79 N. Y. S. 829). It may be that the New York court would hold the injury sufficiently proximate, and the seller liable for it if the warranty were by its terms specifically aimed at the precise defect which caused the injury. On the other hand, the seller in Tyler v. Moody, 111 Ky. 191, 63 S. W. 433, 54 L. R. A. 417, 98 Am. St. Rep. 406, was held liable for personal injuries suffered by the buyer from the bursting of an acetylene gas

machine which was warranted to be absolutely safe and unable to generate enough gas to explode. See also cases in the preceding note which held the seller liable for injuries to a third person. A fortiori it may be supposed these courts would hold the seller liable for injuries to the buyer.

2 See Watson v. Augusta Brewing Co., 124 Ga. 121, 52 S. E. 152, 110 Am. St. Rep. 157, 1 L. R. A. (N. S.) 1178, and note thereto.

Ralph v. Rathburn Co., 75 Fed. 971, 39 U. S. App. 297, 21 C. C. A. 584.

Glidden v. Pooler, 50 Ill. App. 36; Love v. Ross, 89 Iowa, 400, 56 N. W. 528. See also Georgia Code, cited in Butler v. Moore, 68 Ga. 780, 45 Am. Rep. 508. In St. Louis Brewing Assn. v. McEnroe, 80 Mo. App. 429, loss of custom owing to the bad quality of beer furnished was not allowed as an element of damage. Compare Swain v. Schieffelin, 134 N. Y. 471, 31 N. E. 1025, 18 L. R. A. 385, where loss of trade caused by selling ice cream in which poisonous matter bought from the defendant had been placed was allowed as an element of damage.

chinery bought with a warranty has been held not allowable as part of the damages for breach of the warranty.5

If the buyer's own fault or negligence contributed to the injury, as by his use of goods with knowledge of their defects, he cannot recover consequential damages, since such damages were under the circumstances not proximately due to the breach of warranty. It may be that the buyer can best repair the injury caused by the seller's breach by an expenditure which will place him in a better position than he would have been in had the seller kept his contract—as for instance where a buyer replaces defective machines with new machines of a more efficient character. In such a case the whole expense of replacement cannot be charged against the seller. Loss and gain must be balanced."

§ 1395. Action for breach of warranty of title to goods.

There is no reason on principle why different rules should govern the measure of damages for breach of warranty of title and the measure of damages for breach of warranty of quality.

Huyett & Smith Co. v. Gray, 111 N. C. 87, 15 S. E. 939. See also Herring v. Skaggs, 62 Ala. 180, 34 Am. Rep. 4, 73 Ala. 446; Jones v. Ross, 98 Ala. 448, 13 So. 319; Fuller v. Curtis, 100 Ind. 237, 50 Am. Rep. 786; Schurmeier v. English, 46 Minn. 306, 48 N. W. 1112, cited supra, note 34.

Nashua Steel Co. v. Brush, 91 Fed. 213, 50 U. S. App. 461, 33 C. C. A. 456; Razey v. J. B. Colt Co., 106 N. Y. App. Div. 103, 94 N. Y. S. 59; Cedar Rapids &c. Co. v. Sprague Elec. Co., 280 Ill. 386, 117 N. E. 461, L. R. A. 1918 B. 200; Swift v. Redhead, 147 Ia. 94, 122 N. W. 140; Rice v. Friend Bros. Co., 179 Ia. 355, 161 N. W. 310; Major v. Hefley-Coleman Co. (Tex. Civ. App.), 164 S. W. 445.

"British Westinghouse, etc., Mfg. Co. v. Underground Electric, etc., Co., [1912] A. C. 673. The buyer having bought certain machines which failed to comply with a warranty as to the

amount of coal used, sued the seller for damages. After using the machines for a time the buyer had bought other machines to take their place. It was found as a fact that not only was the purchase of the new machines to the pecuniary advantage of the buyer, but that their superiority in efficiency and economy over those manufactured by the defendant was so great that even if the latter had delivered machines in all respects complying with the terms of the contract it would have been to the pecuniary advantage of the buyer at its own cost to have replaced them by the new machines. The House of Lords held it was error to allow in addition to the increased cost of coal while the old machines were in use, the full price of the new machines. 8 The Uniform Sales Act makes no distinction in regard either to the remedies or the measure of damages. No attempt is made to define what damages "directly and naturally re

Considerable difference of decision exists in the law of this country, however, in regard to warranties of title. As has been previously stated,' many jurisdictions hold that no right of action accrues to the buyer until his possession has been disturbed. 10

Even jurisdictions which do not directly deny the right to an action often hold that while the buyer retains undisturbed possession, he can recover only nominal damages. 11 A distinction should here be observed, failure to notice which has perhaps caused confusion. If the seller has not title to the goods the buyer not only may sue upon the warranty for damages, but may also rescind the transaction for failure of consideration. 12 This latter right must certainly be allowed wherever rescission is allowed for breach of warranty of quality, and probably courts which do not allow the remedy of rescission in that case would generally do so where the title was defective, on the ground of total failure of consideration. 13 It is obvious that such redress cannot be allowed to a buyer who still retains possession of the goods. This would be inconsistent with the principle that one who seeks rescission must return anything that he has received. Accordingly the buyer must return the goods to the seller or discharge his duty in the premises by surrendering them to the true owner. If the buyer has not already paid the price, the natural way of asserting rescission is in answer to an action for the price. Decisions which hold that the buyer has no defence while still retaining the goods 14 do not necessarily involve the conclusion that the buyer has no right of acsult" from breach of a warranty of title. The whole of section 69 is applicable both to warranties of quality and warranties of title except subsection (7), which is applicable to warranties of quality only. 'Supra, § 980.

10 See supra, § 980.

11 Patrick, etc., v. Swinney, 5 Bush, 421; Close v. Crossland, 47 Minn. 500, 50 N. W. 694 (covenant against incumbrances); Burt v. Dewey, 40 N. Y. 283, 100 Am. Dec. 482; McGiffin v. Baird, 62 N. Y. 329; O'Brien v. Jones, 91 N. Y. 193.

12 See infra, § 1457.

13 Eicholz v. Bannister, 17 C. B. (N. S.) 708. This was an action to recover back the price. But see Hull v. Caldwell, 3 S. Dak. 451, 454, 54 N. W. 100.

14 For example, Johnson v. Oehmig, 95 Ala. 189, 10 So. 430, 36 Am. St. Rep. 204; Sumner v. Gray, 4 Ark. 467, 38 Am. Dec. 39; Joslin V. Caughlin, 27 Miss. 852; Wanser v. Messler, 29 N. J. L. 256; Hull v. Caldwell, 3 S. Dak. 451, 54 N. W. 100.

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