35 Barb. 17 | N.Y. Sup. Ct. | 1860
Lead Opinion
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,
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
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.
Dissenting Opinion
Whatever may be the form of action set forth in the complaint—whether it be warranty—or fraud—or a mixture of both—it is clear upon the evidence that no fraud was established; nor was it pretended to be, by the plaintiff. The only question therefore is, was the warranty a general one, that the seed was Bristol cabbage seed, or was it a special one, that it would produce good Bristol cabbage on being sown by the purchaser upon land appropriated by him to the raising of that vegetable ? If the former, then it must be conceded that the judge’s ruling, at the circuit, was at least' sufficiently favorable to the plaintiff; for it not only allowed him the difference between the value of Bristol cabbage seed and the value of the seed actually purchased, but the entire value of a similar quantity of good Bristol cabbage seed. On the other hand, if the seed was sold with a warranty that it should serve the purpose of producing to the plaintiff a crop of good Bristol cabbage upon being sown by him with that object, then a more enlarged rule of damages would be proper.
It was therefore a question of fact. And it is evident from the rulings of the judge that he decided or assumed that the warranty was a general, and not a special one. And I do not see that the plaintiff asked to go to the jury on this question of fact, which I think he ought to have done if he desired to avail himself of the point, afterwards. He offered, it is true, certain evidence as to the amount of damage, some
But assuming the question to be an open one, as to which kind of warranty it was, I am of opinion that there was no sufficient evidence of a special warranty. It was quite true, upon the evidence, that the plaintiff was a gardener and had been in the habit of buying seeds of the defendant for several years, and that the defendant knew the plaintiff's occupation ; but that does not show the sale of the seed to have been for the purpose of cultivation by the defendant—much less that the warranty was of that character. And assuming that the defendant showed the plaintiff a sample of cabbage the seed would produce, and that this amounted to a warranty, it yet fails to make out that the defendant warranted that the seed, being sowed by the plaintiff upon land devoted to that object, would produce good Bristol cabbage, and that such warranty was made with the knowledge or understanding by the defendant that the plaintiff bought for that purpose and would devote it to that object. There is nothing, I think, that aids the plaintiff, in the fact that the defendant said he knew it to be Bristol cabbage seed, and knew the consequences of a breach of warranty; nor in the subsequent declaration that he would make it right.
This is the substance of the evidence relied on to establish a special warranty; and I think it insufficient to show that the defendant intended a warranty of that description, and
I think a new trial should be derned.
New trial granted.
Gould, Hogeboom and Peckham, Justices.]
Concurrence Opinion
