121 N.Y.S. 614 | N.Y. App. Term. | 1910
This is an action for a balance of purchase price of a pumping engine. The engine was accepted, but defendant counterclaimed for breach of warranty. The documentary evidence shows that it was sold with the knowledge that it was to be used in greenhouses, that it was “guaranteed to be capable of performing the work” for which it was sold, and that it “will answer your purposes in every particular.” The seller was the manufacturer. These statements constituted an express warranty, which survived the acceptance of the goods. Fairbank Canning Co. v. Metzger, 118 N. Y. 260, 23 N. E. 372, 16 Am. St. Rep. 753. Hence the jury could take into consideration damage actually and unavoidably done to the flowers in defendant’s greenhouses through the failure of the engine to work properly. Beeman v. Banta, 118 N. Y. 538, 23 N. E. 887, 16 Am. St. Rep. 779; Russell v. Corning Manufacturing Co., 49 App. Div. 610, 63 N. Y. Supp. 640. For these reasons, I think that plaintiff’s theory of the case, embodied in its requests to charge, was contrary to the law.
Defendant, however, was asked to “tell the jury what happened to those flowers in your hothouses, when you were without water for so many days.” This was objected to for lack of proof that he “could not have procured water for his plants without this pumping arrangement,” and exception was taken to its admission. It was his duty to adopt reasonable measures to minimize the loss. Bruce v. Fiss, Doerr & Carroll Horse Co., 47 App. Div. 273, 276, 62 N. Y. Supp. 96. It does not appear that he made any serious attempt to do so by procuring water in sufficient quantity in some other way. His special damages were not the total loss of flowers, unless that exceeded the injury to the flowers before he could obtain sufficient help to water them, plus the expense of maintaining a sufficient force for that purpose until he could get in a satisfactory engine. I think that the exception sufficiently raised the point that defendant’s theory of damages, as well as plaintiff’s, was contrary to law, that the evidence was prejudicial, and requires a reversal of the judgment.
The court also failed to make clear to the jury that they must deduct the amount of plaintiff’s claim from any amount found to be payable by him upon the counterclaim, unless the latter amount were so large that the deduction would still leave it sufficient to exhaust the pecuniary jurisdiction of the court. The jury seems to have been under a misapprehension as to'this; but it is unnecessary to discuss, as there must be a new trial for the reasons already stated.
Judgment reversed, and new trial ordered, with costs to appellant to abide the event. All concur.