Hunt v. Van Deusen

New York Supreme Court

Hunt v. Van Deusen

49 N.Y. Sup. Ct. 392, 6 N.Y. St. Rep. 314

DecidedJanuary 4, 1887

StatusPublished

This text of 49 N.Y. Sup. Ct. 392 (Hunt v. Van Deusen) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hunt v. Van Deusen, 49 N.Y. Sup. Ct. 392, 6 N.Y. St. Rep. 314 (N.Y. Super. Ct. 1887).

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Opinion

Landon, J.:

The representations upon which the defendant agreed to buy the pork were a warranty of quality. There was a substantial breach of that warranty, that was not waived by the acceptance of the pork. (Brigg v. Hilton, 99 N. Y., 517.) The plaintiff cites Gilbert Car Company v. Mann (24 W. Dig., 483), decided by us. ¥e held in that case that the car which the plaintiffs manufactured and delivered under an executory contract, containing a warranty as to quality, was accepted under such circumstances as precluded the defendant from insisting upon the warranty. The defendant in' that ease, notwithstanding the warning of the plaintiff, insisted upon the use of- green wood, which caused the defect. The defendant here did nothing to waive his right to rely upon the warranty.

The measure of damages was the difference in value between the pork as it was, and such pork as it was represented to be. The defendant made the pork into sausages and lard. He was required to answer, notwithstanding his objection, that he sold the sausage and lard at the ordinary price. The object of this was to show that by his methods he protected himself from actual loss. But that fact does not avail the vendor. He must respond according to the terms of the contract, and cannot, because of the dexterity of the vendee, escape from the damages measured by the rule above stated. (Muller v. Eno, 14 N. Y., 597.) It was not competent for the plaintiff to prove, as he did by several witnesses, that each one of them had had a hog of this description, and how he treated it, and that he did not discover that the pork differed from his other pork. The defendant could not be prepared to meet these individual cases, [394]*394but only to establish the' general fact in such eases, and the particular fact in this case.

The judgment should be affirmed, with costs.

Learned, P. J. and Bockes, J., concurred.

Judgment of county court affirmed, with costs.

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Landon, J.:

The representations upon which the defendant agreed to buy the pork were a warranty of quality. There was a substantial breach of that warranty, that was not waived by the acceptance of the pork. (Brigg v. Hilton, 99 N. Y., 517.) The plaintiff cites Gilbert Car Company v. Mann (24 W. Dig., 483), decided by us. ¥e held in that case that the car which the plaintiffs manufactured and delivered under an executory contract, containing a warranty as to quality, was accepted under such circumstances as precluded the defendant from insisting upon the warranty. The defendant in' that ease, notwithstanding the warning of the plaintiff, insisted upon the use of- green wood, which caused the defect. The defendant here did nothing to waive his right to rely upon the warranty.

The measure of damages was the difference in value between the pork as it was, and such pork as it was represented to be. The defendant made the pork into sausages and lard. He was required to answer, notwithstanding his objection, that he sold the sausage and lard at the ordinary price. The object of this was to show that by his methods he protected himself from actual loss. But that fact does not avail the vendor. He must respond according to the terms of the contract, and cannot, because of the dexterity of the vendee, escape from the damages measured by the rule above stated. (Muller v. Eno, 14 N. Y., 597.) It was not competent for the plaintiff to prove, as he did by several witnesses, that each one of them had had a hog of this description, and how he treated it, and that he did not discover that the pork differed from his other pork. The defendant could not be prepared to meet these individual cases, [394]*394but only to establish the' general fact in such eases, and the particular fact in this case.

The judgment should be affirmed, with costs.

Learned, P. J. and Bockes, J., concurred.

Judgment of county court affirmed, with costs.

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49 N.Y. Sup. Ct. 392, 6 N.Y. St. Rep. 314, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hunt-v-van-deusen-nysupct-1887.

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