Birdsinger v. McCormick Harvesting Machine Co.

In Rich v. Smith (34 Hun, 136) the plaintiff sued upon a ¿reach of warranty of a mare. She was in fact vicious and ran away, injuring the plaintiff, the mare and the carriage. The trial court stated the measure of damage to be the difference between the value of the mare as she was and her value if she had been as warranted. Presiding Justice James 0. Smith, in writing for affirmance of the judgment appealed from, in part says : “ The rule laid down by the judge is that which applies in the case of a general warranty of personal property sold. Where, however, the warranty is special, having reference to a particular purpose for which the property is to be used out of the ordinary course, a different rule applies. In the latter class of cases, the vendee is entitled to recover in case of a breach of the special warranty, such damages as either arise naturally, that is, in the usual course of things, from the breach itself, or such as may reasonably be supposed to have been contemplated by the parties when making the contract, as the probable result of the breach. (Passinger v. Thorburn, 34 N. Y. 634, and cases there cited by Davies, C. J.) . But where the warranty is general an accidental damage even in the vendee’s own affairs is not regarded. As was said by Cowen, J., in Hargous v. Ablon, 5 Hill, 472: ‘ The search is for immediate and necessary consequences.’ ”

In Passinger v. Thorburn (34 N. Y. 634) the rule is stated in the head note, “ where there is a special warranty and a breach, the plaintiff is entitled to such damages as were the natural and necessary consequences of the breach.” In White v. Miller (71 N. Y. 118) it was held that upon the sale of Bristol cabbage seed there was an implied warranty that the seed was Bristol cabbage seed, and also that such seed was free from any latent defect arising from the *38mode of cultivation. In that case the measure of damage' adopted was the difference in value between the crop raised from the defective seed, and a crop of Bristol cabbage such as ordinarily would have been produced that year. In Hoe v. Sanborn (36 N. Y. 98), where a saw Was sold by warranty, the court held the measure of damage to be the difference in the value of the saw as delivered and a saw of the quality as warranted. Parker, J., in writing for the court, said : “ There being no warranty that the saw was fit for any specific use, there is no opportunity for the application of. the rule, that the vendee is entitled to such damages beyond those contemplated by the rule above stated, as were the natural arid necessary consequences of the breach, which has been applied to cases where the warranty has been so specific. (Passinger v. Thorburn, 35 Barb. 17; S. C., 34 N. Y. 634.) It is only to such cases that this rule has been applied. It was said in Hargous v. Ablon, 5 Hill, 473, £ A warranty or promise concerning a thing, being general, that is to say, 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 in search for an indemnity against its breach.’ (See also Milburn v. Belloni, 34 Barb. 607.) The offer to show the damages which the defendant had sustained, con¡sequent upon the failure of the saw to operate, was therefore properly overruled.”

It may be difficult to sustain the rule that only in case of special warranty can consequential damages be recovered. It has been held that if a gun or a boiler explodes, a vendee may recover . consequential damages for a breach of the warranty that it was well made and sound. Primarily the contract of warranty is simply a contract to make good to the vendee the value of the article sold. In no case have further and consequential damages been allowed, unless there is indicated an intention .to contract as against such further damage. While generally that intention is indicated by a special warranty, it may be, as in the warranty of a gun or a boiler as sound and well made, that the warrantor is presumed to have contemplated as damages personal injuries as being the natural and probable result of a breach of the warranty. In the case at bar we find no special warranty. The warranty is general. The accident was not one which was a natural or probable result-*39of a breach of that warranty. With a break in the machinery, the safety lever might not be expected to work, but it could not reasonably have been anticipated that the rollers would stop revolving for a sufficient time to induce the operator to put his hands upon them, and then, without apparent cause, commence to revolve and-cause the injury which has been here suffered. This is not such a case then as with a general warranty there can be held to have been contemplated any such consequential damages.

The respondent contends, however, that while this warranty is a general warranty in form, inasmuch as the machine has a single use, to wit, the shredding and husking of corn, the legal interpretation of the warranty is that the machine is well made and suitable for that purpose. He then argues that there is in legal effect a special warranty which brings the case within the authority of those cases authorizing the recovery of consequential damages. It is not enough, however, to authorize the recovery of all consequential damages that the warranty should be special. The nature of the warranty must be such as to indicate the damage suffered as that contemplated by the contract of warranty. Within the respondent’s contention as to the legal effect of this warranty, if a quantity of corn should be bruised in passing through the machine, such damage might well be held to be consequential damage within the contemplatation of the parties, and as such recoverable. From a warranty that this machine was of good material and well made for the purpose of husking and shredding corn, no promise can legally be implied to compensate the vendee for personal injuries suffered in the operation of the machine. In Bruce v. Fiss, Doerr & Carroll Horse Co. (47 App. Div. 273) consequential damages were allowed for a breach of a warranty of a horse that it was “ sound, kind and true, and gentle arid quiet in harness, and suitable for use by plaintiff in his profession as a physician, to drive in harness as a carriage horse.” Justice Cullen, in writing for the court, says : “ We think one of the most natural and probable results of a breach of this warranty and from the viciousness of the horse, would be injury to the vehicle and its occupants.” The ultimate question in the consideration of all contracts is the determination of the real intention of the parties. In this contract of warranty, whether it be construed as special or general, we are unable to find any intent to *40become liable for any damage suffered beyond making good to the vendee the machine as warranted.

Other objections to this judgment are urged by the appellant which it thus becomes unnecessary to consider. The judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event.

. All concurred.

Judgment and order reversed and new trial granted, with costs to appellant to abide event.