Milburn v. . Belloni

39 N.Y. 53 | NY | 1868

The order reversing the report of the referee, does not state that it was reversed on the ground of error in fact. It must, therefore, be held to have been reversed upon questions of law merely (Code, § 272). In such case it is settled by numerous decisions, that, in its consideration in this court, all facts not expressly stated are to be assumed in support of the report, and that any fact, the reverse of which is not found by the report, may be invoked in its aid. (22 N.Y. 323; 20 id. 100.) There is fair evidence, upon which the referee might have found that the vendor warranted the dust as fit for the making of brick. In the present case we may, upon this principle, hold it as the fact that when the plaintiff purchased the dust in question, he stated to the defendants that he wanted it to use in making brick, that if it had in it any soft dust it would destroy his brick, that the defendants sold and warranted it to be used for that purpose, and as free from the objectionable material, and that if it had been so free it would have made good brick.

It is apparent from the whole tenor of the report that such was in truth the understanding and intention of the referee. In the recent case of Passenger v. Thorburn (34 N.Y. 634), all the cases are reviewed by Judge DAVIES. There the defendant had sold a quantity of cabbage seed, and had warranted that it would produce Bristol cabbage. It turned out to be seed of an inferior quality, and the crop produced was of little value. Under the ruling of the judge, the jury gave the plaintiff as damages the value of the crop as it would have been if of Bristol cabbage, as ordinarily produced that year, deducting the expense of raising the crop, and deducting also the value of the crop actually raised thereupon. This principle was sustained in this court. The case of Sneed v. Ford (107 Eng. Com. Law, 612) laid down the rule that the plaintiff was entitled to recover the damages which are the natural consequences of the breach of the contract. A machine to be used for threshing wheat was not delivered at the time agreed upon, in consequence of which the wheat was stacked and afterward injured by the rain. This injury, and the loss and expense which it involved, were held to be the natural results of the defendant's delay.

In Bonadale v. Buxton, the loss of the anchor was held to be the natural result of the insufficiency of a cable sold for holding an anchor and warranted to last for two years.

In Brown v. Edgerton (2 Man. and G. 279), the loss of a pipe of wine by the breaking of a rope attached to a crane, sold for that use, was held to fall properly within the scope of damages for selling an insufficient rope to be used upon such crane.

The case of Passenger v. Thorburn is decisive of the present case.

I think the rule of damages was right, and that the order granting a new trial should be reversed, and the judgment of Special Term should be affirmed.

Order reversed.