Passenger v. Thorburn

35 Barb. 17, 1860 N.Y. App. Div. LEXIS 220

• Court: New York Supreme Court
• Decided: March 5, 1860
• Status: Published

Opinions

Gould, J.

Taking the present rule of damages (to be recovered for the breach of any contract) to be “ that the party injured is entitled to recover all his damages, including gains prevented as well as losses sustained; within these limits, 1st. The damages must be such as may fairly be supposed to have entered into the contemplation of the parties, when they made the contract—that is, must he such as might naturally be expected to follow its violation; and 2dly. They must he certain in their nature, and in respect to the cause from which they proceed;” (16 N. Y. Rep. 494, 495;) and that a warranty concerning a thing, being general, or not having reference to any purpose for which it is to be used out of the ordinary course, the law does not go beyond the general market for indemnity against its breach. (5 Hill, 473.) It seems to me to follow, on principle, that where a warranty of a thing has “ reference to a purpose for which it is to be used,” the rule of indemnity for the broken contract of warranty must bring in the damages which naturally did follow, and “ might naturally be expected to follow its violation,” when the thing warranted is put to the intended and understood use; if they are in their nature certain, (to a reasonable intent,) and it is also certain that they proceeded from the breach of warranty. This is certainly the doctrine of many English cases. (8 Taunt. 534, 537. Page v. Pavey, 34 Eng. Com. Law Rep. 628. Brown v. Edgington, 40 Eng. Com. Law Rep. 371.)

Under these rules, the case before us stands thus: The plaintiff applied to the defendant for seed of a particular kind of cabbage—a valuable kind. The plaintiff's business was raising vegetables for the city market; and he wished the seed for planting to raise cabbages in his market garden; and the defendant was acquainted with his business and the purpose of his buying the seed. The defendant showed to the plaintiff “ a sample of cabbage the seed would produce;” said he knew the seed was Bristol cabbage seed, and warranted it as such. The defendant was entirely honest in so warranting; as he relied on his vendor. The plaintiff bought the seed. Had they been Bristol cabbage seed, they would have produced what the defendant said they would produce— Bristol cabbage. The plaintiff planted the seed, and cultivated the plants which that seed produced; and they proved not to be Bristol cabbage; and to be worth little—not the cost of raising them.

It seems to me the rule of damages must be such loss as the plaintiff can clearly prove he sustained by the crop’s not being what the warranty, in substance, said it should be, Bristol cabbage; and that, therefore, there should be a new trial.