Bronson, J.
The defendant agreed to sell “ good in-grafted winter fruit,” and the only proof tending to show a breach of the contract was the fact that some of the apples were in an unsound condition when they arrived in Canada. [12]*12The jury must have believed that there was some want of care or skill in gathering and putting up the apples. The action was assumpsit, alleging a breach of the warranty. There was no count in the declaration under which the plaintiff could have claimed to recover on the ground of fraud, nor was there any pretence on the trial that there had been any fraud on the part of the defendant. The plaintiff paid five shillings per barrel for the apples, and he has recovered damages at the rate of nearly nine shillings per barrel, and the question is, whether the court below laid down the proper rule of damages for the guidance of the jury. I think they did not.
The defendant agreed to sell apples of a particular kind and quality, to be delivered on his farm in Barre. . He knew that the apples were purchased for the Canada market; but he did not agree to deliver them in Canada, nor did he make any contract whatever in relation to that market. If there was any defect in the fruit, the plaintiff was entitled to recover the difference in value between a sound and the unsound article at the place of delivery. If in any event he could recover more, it could only be allowed by way of indemnity, and not on the ground of a loss of profits.
When there is a total failure on the part of the vendor to perform a contract for the sale of goods, the rule of damages is, the difference between the contract price and the market value of the article at the place where it should have been delivered. If the value of the goods at other places in the same neighborhood may be shown, it can only be done for the purpose of ascertaining the true value at the place of delivery. That is the controling fact. (Gregory v. McDowel, 8 Wend., 435.) If the contract has been performed so far as relates to the delivery of the goods, and by reason of some defect they do not correspond with the contract, the primary rule of damages is the difference between the price paid, or the value of ,such goods as were bargained for, and the value of the defective article which was delivered; and in this case, also, the inquiry is, what was the value of the goods at the place of. delivery. But where the vendee has actually sustained other damage, which is the direct and [13]*13immediate consequence of the defect in the goods, it seems that such damage may be recovered from the vendor. See Long on Sales, 478-9, ed. of ’39. In Lewis v. Peake, 7 Taunt., 153, the defendant sold a horse to the plaintiff with a warranty of soundness, and the plaintiff, confiding in the defendant’s warranty, re-sold the horse with warranty to Dowling. The horse proving unsound, Dowling sued the plaintiff and recovered damages and costs. The defendant had notice of that action and the option of defending it, but he did nothing. In an action against the defendant on his contract of warranty, the plaintiff was allowed to recover the costs as well as the damages which he had been compelled to pay to Dowling. The same principle was asserted in Mainwaring v. Brandon, 8 Taunt., 202. In Borradaile v. Brunton, 8 Taunt., 535, the defendant sold a chain cable to the plaintiff) and warranted it sufficient to hold the anchor. The anchor having been lost in consequence of the insufficiency of the cable, the plaintiff was allowed to recover the value of the anchor, as well as the price of-the cable. In Neale v. Wyllie, 3 Barn. & Cress., 533, the plaintiff, who as tenant of certain premises had covenanted to repair, underlet the property to the defendant, taking a like covenant. The defendant suffered the premises to be out of repair, and left them in that condition, in consequence of which the plaintiff was compelled to pay damages and costs in an action brought against him by the original lessor. It was held that the plaintiff was entitled to recover those damages and costs, anu the costs of the defence, in an action upon the defendant’s covenant. Without stopping to inquire whether all of these cases stand on a solid foundation, it is sufficient for the present occasion to remark, that in no instance was the plaintiff allowed to recover any thing more than the damages which he had actually sustained. He was allowed nothing for the profits which he might have realized if the contract had been fully performed. Such damages are never allowed, unless they have been specially provided for in the contract. (Blanchard v. Ely, 21 Wend., 342.) I find no such provision in this case.
Although the defendant made no contract concerning a [14]*14foreign market, he knew the apples were to be sent to Canada, and that the plaintiff would have no opportunity to inspect the fruit until it reached the place of destination. Under these circumstances the plaintiff may, perhaps, be entitled to such damages as he has actually sustained in consequence of the improper manner of gathering and putting up the apples, although the damages should exceed the difference in value between a sound and the unsoúnd article at the place of delivery. If, for example, the apples had been wholly lost in consequence of the fault, of the vendor, the vendee might recover the expenses of transportation to the contemplated market, in addition to the price paid for the fruit. But he could in no event go beyond that, and recover any thing on the ground of a loss of profits. The court below evidently took a different view of the question, and most of the sum which the plaintiff has recovered stands on the ground of a loss of profits. The apples cost five shillings per barrel, and the expense of transportation was four "shillings and four pence — making in all nine shillings and four pence. What the apples sold for in Canada does not appear, hut according to the lowest estimate of the plaintiff’s witnesses they were worth six shillings a barrel. The actual loss, therefore, did not exceed three shillings and four pence, and yet the plaintiff has recovered at the rate of nearly nine shillings per barrel. The evidence of the value of merchantable fruit in Canada was neither offered nor received for the purpose of ascertaining the value at Barre — the place of delivery; but it was evidently offered and admitted for the purpose of giving the plaiqtiff such profits as ho might have made if there had been no defect in the apples. It is very questionable whether the evidence was admissible in any point of view ; but clearly it should not have been admitted as forming in itself the basis for estimating damages.
As the judgment must be reversed on this ground, I have not examined the other questions.
Nelson, C. J., concurred.
Cowen, J.
The contract by Lattin with Davis, as proved [15]*15by Tousley, was, that the apples were to be grafted cultivated fruit; and that they were to be put up for the Canadian market. Upon this evidence, the court below held the contract to be a warranty that the fruit should not only be grafted and cultivated, but moreover adapted to the Canadian market, and decided that the true measure of damages must be the difference between the real value of the apples as they proved to be, and the price of good merchantable fruit in the Canada market, deducting the price of transporting the same there.
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Bronson, J.
The defendant agreed to sell “ good in-grafted winter fruit,” and the only proof tending to show a breach of the contract was the fact that some of the apples were in an unsound condition when they arrived in Canada. [12]*12The jury must have believed that there was some want of care or skill in gathering and putting up the apples. The action was assumpsit, alleging a breach of the warranty. There was no count in the declaration under which the plaintiff could have claimed to recover on the ground of fraud, nor was there any pretence on the trial that there had been any fraud on the part of the defendant. The plaintiff paid five shillings per barrel for the apples, and he has recovered damages at the rate of nearly nine shillings per barrel, and the question is, whether the court below laid down the proper rule of damages for the guidance of the jury. I think they did not.
The defendant agreed to sell apples of a particular kind and quality, to be delivered on his farm in Barre. . He knew that the apples were purchased for the Canada market; but he did not agree to deliver them in Canada, nor did he make any contract whatever in relation to that market. If there was any defect in the fruit, the plaintiff was entitled to recover the difference in value between a sound and the unsound article at the place of delivery. If in any event he could recover more, it could only be allowed by way of indemnity, and not on the ground of a loss of profits.
When there is a total failure on the part of the vendor to perform a contract for the sale of goods, the rule of damages is, the difference between the contract price and the market value of the article at the place where it should have been delivered. If the value of the goods at other places in the same neighborhood may be shown, it can only be done for the purpose of ascertaining the true value at the place of delivery. That is the controling fact. (Gregory v. McDowel, 8 Wend., 435.) If the contract has been performed so far as relates to the delivery of the goods, and by reason of some defect they do not correspond with the contract, the primary rule of damages is the difference between the price paid, or the value of ,such goods as were bargained for, and the value of the defective article which was delivered; and in this case, also, the inquiry is, what was the value of the goods at the place of. delivery. But where the vendee has actually sustained other damage, which is the direct and [13]*13immediate consequence of the defect in the goods, it seems that such damage may be recovered from the vendor. See Long on Sales, 478-9, ed. of ’39. In Lewis v. Peake, 7 Taunt., 153, the defendant sold a horse to the plaintiff with a warranty of soundness, and the plaintiff, confiding in the defendant’s warranty, re-sold the horse with warranty to Dowling. The horse proving unsound, Dowling sued the plaintiff and recovered damages and costs. The defendant had notice of that action and the option of defending it, but he did nothing. In an action against the defendant on his contract of warranty, the plaintiff was allowed to recover the costs as well as the damages which he had been compelled to pay to Dowling. The same principle was asserted in Mainwaring v. Brandon, 8 Taunt., 202. In Borradaile v. Brunton, 8 Taunt., 535, the defendant sold a chain cable to the plaintiff) and warranted it sufficient to hold the anchor. The anchor having been lost in consequence of the insufficiency of the cable, the plaintiff was allowed to recover the value of the anchor, as well as the price of-the cable. In Neale v. Wyllie, 3 Barn. & Cress., 533, the plaintiff, who as tenant of certain premises had covenanted to repair, underlet the property to the defendant, taking a like covenant. The defendant suffered the premises to be out of repair, and left them in that condition, in consequence of which the plaintiff was compelled to pay damages and costs in an action brought against him by the original lessor. It was held that the plaintiff was entitled to recover those damages and costs, anu the costs of the defence, in an action upon the defendant’s covenant. Without stopping to inquire whether all of these cases stand on a solid foundation, it is sufficient for the present occasion to remark, that in no instance was the plaintiff allowed to recover any thing more than the damages which he had actually sustained. He was allowed nothing for the profits which he might have realized if the contract had been fully performed. Such damages are never allowed, unless they have been specially provided for in the contract. (Blanchard v. Ely, 21 Wend., 342.) I find no such provision in this case.
Although the defendant made no contract concerning a [14]*14foreign market, he knew the apples were to be sent to Canada, and that the plaintiff would have no opportunity to inspect the fruit until it reached the place of destination. Under these circumstances the plaintiff may, perhaps, be entitled to such damages as he has actually sustained in consequence of the improper manner of gathering and putting up the apples, although the damages should exceed the difference in value between a sound and the unsoúnd article at the place of delivery. If, for example, the apples had been wholly lost in consequence of the fault, of the vendor, the vendee might recover the expenses of transportation to the contemplated market, in addition to the price paid for the fruit. But he could in no event go beyond that, and recover any thing on the ground of a loss of profits. The court below evidently took a different view of the question, and most of the sum which the plaintiff has recovered stands on the ground of a loss of profits. The apples cost five shillings per barrel, and the expense of transportation was four "shillings and four pence — making in all nine shillings and four pence. What the apples sold for in Canada does not appear, hut according to the lowest estimate of the plaintiff’s witnesses they were worth six shillings a barrel. The actual loss, therefore, did not exceed three shillings and four pence, and yet the plaintiff has recovered at the rate of nearly nine shillings per barrel. The evidence of the value of merchantable fruit in Canada was neither offered nor received for the purpose of ascertaining the value at Barre — the place of delivery; but it was evidently offered and admitted for the purpose of giving the plaiqtiff such profits as ho might have made if there had been no defect in the apples. It is very questionable whether the evidence was admissible in any point of view ; but clearly it should not have been admitted as forming in itself the basis for estimating damages.
As the judgment must be reversed on this ground, I have not examined the other questions.
Nelson, C. J., concurred.
Cowen, J.
The contract by Lattin with Davis, as proved [15]*15by Tousley, was, that the apples were to be grafted cultivated fruit; and that they were to be put up for the Canadian market. Upon this evidence, the court below held the contract to be a warranty that the fruit should not only be grafted and cultivated, but moreover adapted to the Canadian market, and decided that the true measure of damages must be the difference between the real value of the apples as they proved to be, and the price of good merchantable fruit in the Canada market, deducting the price of transporting the same there. The proof was quite direct, the parties appearing to have called on Tousley for the purpose of having him act as an attesting witness of the bargain$ .and the words do, I think, amount to what the court below supposed. The parties must have understood the one as purchasing and the other as selling the article in reference to the Canada market; the warranty must be understood accordingly (Long on Sales, 205, Jim. ed. of 1839, and the cases there cited), and, therefore, could not be satisfied short of the measure which the court prescribed. The defendant below was bound to make good the value of the article in the market to which the warranty referred. The general rule is undoubtedly as contended for by the counsel for the plaintiff in error, that the measure of damages for breach of a warranty in respect to quality, is the difference at the place of sale; but it may in terms go beyond; and in following out the special provision the law does no more than it often does in other cases; allow the parties to agree that the case shall form an exception to the general rule. The form into which the law throws such a contract as the one in question is, “ I promise that the apples shall be equal to a merchantable article of the kind in Canada.” Coming short of that through a defect of quality, the promise must be made good according to its legal effect. The falling off in Canada must be supplied. The rule' laid down an,d the cases cited in Blanchard v. Ely, 21 Wend., 347, 8, are not incompatible with this view of the question. At pages 348, 9, it is admitted that the vendor may, by a contract, express or tacit, incur liability for extrinsic damages beyond those allowed by the general rule, And in Driggs v. Dwight, 17 [16]*16Wend., 71, we held that by a breach of promise to demise a tavern stand at a day certain, the promisor rendered himself liable for the promisee’s expenses in breaking up his former residence and removing to take possession.
It follows that the court below were right in allowing evidence of the manner in which the property was treated on its going to the Canada market and being offered for sale. The warranty having been broken in fact, it was proper to show that persons, to -whom the apples were presented as purchasers, declined altogether by reason of the defect, or refused for the same reason to give more than a certain price. The proof is objected to as naked declaration; but it'was not so. It was a part of the res gestee, and as such proper to qualify and give point to the refusal of purchasers.
Nathaniel Lattin was not finally rejected. He was released and sworn as a witness. The exception taken on the ground of his previous rejection was thus obviated. The exception complained that he was erroneously rejected as incompetent, whereas he was in fact received as competent. The possible effect which the first rejection may have had on his credibility with the jury does not entitle the plaintiff in error to insist on the exception.
Clearly it is no objection that the plaintiff below sold the apples on his own account. The property passed; and there being no fraud, he could not sell them for the account of the defendant. The well settled rule of the present day is that for a naked breach of warranty without fraud, 'the vendee has no right to insist on the defective article being taken back. He can not rescind the contract without the consent of the vendor. (Street v. Blay, 2 Barn. & Adolph., 456; Gompertz v. Dent, 2 Crompt. & Mees., 207; Patteshall v. Tranter, 3 Adolph & Ellis, 103; S. C., 4 Nev. & Mann., 649; Freeman v. Baker, 5 Carr. & Payne, 475; Thornton v. Wynn, 12 Wheat., 183, 189,193; Lightburn v. Cooper, 1 Dana, 273.)
The doctrine of the courts in Maryland, to which we were referred, that a sale by the vendee on his own account, after a breach of the warranty, forfeits all claim for damages. (Rutter v. Blake 2 Har. & John., 353-5), is founded on a rule which is admitted by those courts to be peculiar to that [17]*17state, and contrary to the weight of common law authority, viz., that the vendee may rescind as well for breach of simple warranty as for fraud. (Franklin v. Long, 7 Gill & John., 407-419.) That a neglect to rescind, and even a sale on the vendee’s own account, should be followed by a forfeiture of all claim for damages, admitting the right of the vendee to be as holden in Maryland, seems to me a still more obvious departure from the English cases. The utmost which we understand to be holden by any of those cases at any time is, that the vendee may elect either to retain and sell the property, or rescind, and in either case sue for damages.
But the informality in the entry of the verdict can not be got over. The entry should have been directly of a trial by jury at the time and place specified by the order for trial on the record, whereas it states that the said judges before whom said issue was tried have sent hither their record had before them in these words, &c. Then follows a postea nearly in the form of one at the circuit, which is not in terms connected with the issue ordered to be tried. It may, for aught that appears, relate to another and distinct issue not on the record in question. I think the judgment should, for that reason, be reversed, with leave, however, to amend on paying the costs of the plaintiff in error. (2 R. S. 344, §7,8, 2d ed.)
Judgment reversed.