Whitney v. Taylor

The statement of the case shows clearly the nature of the questions to be decided upon this appeal. The first question which I shall examine is, whether the warranty is general or special. If it is a general warranty, then the fact that the mare was with foal, was not a breach of it. It was in no sense of the word to be regarded as an unsoundness, although it rendered the mare less valuable for livery purposes, for a time at least. It may be a question what was intended by the words that the “ ponies are all right, every way, for livery purposes.” bic one would suppose that any thing else was intended except that they were sound. What is implied more than this is general praise, which does not lay the foundation for an action either for fraud or warranty.

If the defendant knew that the mare was with foal, and purposely concealed that fact from the plaintiff, although it would not be regarded as unsoundness, still, if any damages had ensued, it would constitute an actionable fraud. But' unless the defendant knew the fact, it can hardly be supposed that he intended to warrant specially against the mare’s being in that condition, or that the plaintiff so un- • derstood it. There was a good deal of discussion and. some difference of opinion in Passinger v. Thorburn, (34 *540N. Y. Rep. 634,) whether the case showed that the warranty was general or special; but a majority of the court having come to the conclusion that the warranty was special, the plaintiff was allowed to recover his consequential damages. My opinion is, that we ought not to extend the rule to other and doubtful cases. In the absence of fraud, I do not think a warranty of the kind here proved can be construed into a special undertaking that a mare is not with foal. Her being with foal, certainly is not an unsoundness, within the meaning of a general warranty.

But assuming that it was within the meaning of the warranty, the question proposed to the witness was inadmissible to prove the damages. There was no market value for pregnant mares for livery purposes, and the opinion of the witness could not he received as in the case where an article has a known or market value.

. The question assumes that the witness knows how much' was the value of the mare for livery purposes. It also assumes that he knows how much she would have been worth if she had not been with foal, whereas there was' no evidence' to show that he knew either fact. How, then, could he compute the damages ? The farthest the authorities have gone, would only allow the witness to give the difference in the value when he had qualified himself by showing that he was acquainted with' the value of the article as warranted, and with its value as diminished on account of the defect complained of. That difference the witness may call “ dollars and cents,” or'“ damages,” but before be can answer in either form, he must show that he is qualified to answer it as a fact and not as mere speculation.

As there was no known or market value for pregnant mares for livery purposes, it is evident that the plaintiff resorted to an improper mode of ascertaining damages. The damages in such a case are necessarily special, and *541limited to the actual loss sustained. So far as they depend upon mere estimate, they must be fixed by the jury, and not by the witnesses. (Morehouse v. Mathews, 2 N. Y. Rep. 514.) The particular items of damages should be proved, and the whole together left to the jury to assess according to their own judgment. From an examination of the testimony in this case, it is impossible to determine with any accuracy what particular damages the plaintiff sustained in consequence of the mare’s being with foal. One way to arrive at the solution of the question, would have been for-the plaintiff to show how much the mare was worth, not for livery purposes, but for general purposes, and how much she would have been worth if she had been in a condition to put in the livery business, single or double.

It is quite evident that the witness did not make this difference in value the rule of damages. He was not inquired of as to her real value. For aught we know, she may have had a much larger value on account of her being with foal than she would have for livery purposes; and her place in the livery of the plaintiff may have been supplied for a less sum than her real value.

In my opinion, the evidence objected to was improper and inadmissible to prove damages. If it is therefore conceded that the warranty was special so as to support an action for the special damages, the court erred in allowing the witness to give his opinion as to the amount, without showing what the mare would have been worth for livery purposes if she hadytot been with foal, and what was her real value, being with foal, so that the court could see that his estimate of the damages was no more than the difference if the witness had expressed it in dollars and cents. The judgment should be reversed and a new trial granted, costs to abide the event.

Mullin, J., read an opinion coming to the same result.

Foster, J., dissented.

Judgment reversed, and a new trial granted, costs to abide the event. - -

Foster, Mullin and Morgan, Justices.]