74 N.J.L. 138 | N.J. | 1906
'The opinion of the court was delivered by
This case was tried before the court without a jury; the court found in favor, of the plaintiff and allowed a rule to show cause. The objection that the verdict was against the weight of the evidence seems to be properly before us; the objection to the rule of damages adopted by the court involves a legal question which was not presented to the court below, and therefore is not now the subject of review. Mills v. Mott, 30 Vroom 15; Jackson v. Traction Company, Id. 25.
It is now argued by the defendant that the contract was only for best Dorset marble, and that there is no proof that the marble furnished or tendered was not best Dorset marble.' This argument overlooks a material term of the contract— that the tone and character of the marble was to be suited for the building in question; a sample of the stone used was. furnished by the plaintiff to the defendant. The plaintiff was a sculptor; the defendant operated a marble quarry; the blocks were still to be quarried and sawed, for a special purpose that was disclosed. Under such circumstances the buyer has no opportunity to inspect; he necessarily relies upon the seller to comply with the contract, and the seller holds himself out as competent to furnish goods adapted to the particular purpose. The reasons for the rule of caveat emptor are not applicable to such a case, and accordingly the authorities hold that there is an implied warranty of fitness. Hoe v. Sanborn, 21 N. Y. 552 (1860); Kellogg Bridge Co. v. Hamilton, 110 U. S. 108 (1884); Drummond v. Van Ingen, 12 App. Cas. 284; 56 L. J., Q. B. 563 (1887).
These were cases whore a manufacturer undertook to supply
It is not necessary, however, in the present case, to resort to the implied warranty, for by the express terms of the contract suitability in tone and character for tire particular building was made a matter of description, and in effect this was a warranty. Wolcott v. Mount, 7 Vroom 262.
The evidence that the rejected blocks were not suited in tone and. character for the purpose intended was ample to justify the court’s finding on that point.
It is said, however, that after the receipt of the four rejected blocks the plaintiff did some work upon them, and this is urged as evidence of an acceptance; but the work seems to have been no more than was necessary in order to determine the character of the stone, and ceased as soon as its unfitness was discovered, and notice' was then given the defendant’s agent.
Although the propriety of the court’s ruling as to damages is not presented by any request to find or by any exception to the rule adopted, we have considered that question also and find no1 error.
Marble of the quality and size required was not procurable in the Dorset region, and the plaintiff procured what he needed at Rutland. The Rutland marble is said to have been of a better quality and more expensive than the best Dorset marble, but there is evidence justifying an inference that one of the defendants suggested that a substitute be procured at one of the Rutland quarries, and that it was in pursuance of this suggestion that the plaintiff bought to meet his needs.
The measure of damages in such a case is the difference between the contract price and the value of the goods; this value, in the case of goods procurable in the market, is the market price; but when there is no market, the value is determined by the price of the best (i. e,., the nearest) substitute
We find nothing in the ease to justify us in setting aside the findings of the trial judge, and the rule must be discharged.