White v. Miller. storm can break them, or to withstand such storms as reasonable foresight and prudence could not anticipate. It cannot be said that this request was fairly covered by the charge as made. On the contrary, the tenor of the charge was such as to make the request highly proper. It may well be doubted whether there was any evidence to be submitted to the jury, tending to show that this post and the line were not originally sufficient; but, for reasons above stated, the judgment must be reversed and new trial granted. All concur, except CHURCH, C. J., not voting; FOLGER and MILLER, JJ., absent. The defendants, a corporation, were growers of garden seeds for sale, and the plaintiffs, to the knowledge of defendants, were market gardeners, who raised vegetables for sale. In 1867 the plaintiffs bought of the defendants large Bristol cabbage seed, which produced Bristol cabbage. In the fall of 1867, Miller, one of defendants' trustees, informed plaintiffs that defendants had that year raised the same kind of seed, and solicited them to purchase. In February, 1868, plaintiffs applied to defendants for seed, and the defendants exhibited a catalogue of the seed they had for sale, among which was large Bristol cabbage seed. The plaintiffs then ordered some of that seed, with other, and the seed was delivered to them, the cabbage seed being billed" large Bristol cabbage seed." The seed thus sold had been raised upon Bristol cabbage stocks, which were in the vicinity of other varieties of cabbage, and were fertilized by the pollen therefrom, and consequently the seed in question became impure, and lost the character and quality of Bristol cabbage seed, and the plants raised by the plaintiffs therefrom were of no known variety, and of no value except for fodder. In an action for damages, held, that the defendants warranted the seed to be Bris tol cabbage seed; that there was an implied warranty that the seed had been properly raised; and that the proper measure of damages was the difference in value between the crop raised and a crop of Bristol cabbage of that year.* * See Bragg v. Morrill, 49 Vt. 45; 24 Am. Rep. 102, and note, 104. White v. Miller. In an action for damages for breach of warranty of seed, interest on the damages from the time when the crop would have been harvested and sold, cannot be recovered. In an action of damages for breach of warranty for sale of a chattel, declara tions of the vendor's agent, eight months after the sale, and not connected with any present business transaction, that the chattel was defective, are inadmissible in evidence. A CTION for damages for breach of warranty on sale of seed. The facts are stated in the opinion. The plaintiffs had judgment, and defendants appealed. Lyman Tremain, for appellants. There was no express warranty. Wilmot v. Hurd, 11 Wend. 584; 2 Caines, 48; Snell v. Moses, 1 Johns. 96; Holden v. Dakin, 4 id. 421; Welch v. Carter, 1 Wend. 185; & Cow. 25; 5 N. Y. 73; Kent's Com. Sales, 1 Den. 378; 20 Johns. 196 Duffee v. Mason, 26 Barb. 141; Moses v. Meade, 5 Den. 617. There was no implied warranty. Bartlett v. Hoppock, 34 N. Y. 118; Howard v. Emerson, 110 Mass. 320; 14 Am. Rep. 608; Hoe v. Sanborn, 21 N. Y. 552; Dart's V. and P. 261; Loomis v. Newhall, 15 Pick. 169; Zule v. Zule, 24 Wend. 76; Vanderkarr v. Vanderkarr, 11 Johns. 122; Gates v. Caldwell, 7 Mass. 68; Sumner v. Williams, 8 id. 201; Parkhurst v. Van Cortland, 1 Johns. Ch. 273; Norton v. Woodruff, 2 N. Y. 153; Dounce v. Dow, 64 id. 411; 34 id. 118. Anticipated profits could not be allowed as damages. Passinger v. Thorburn, 34 N. Y. 634, 639; Ferris v. Comstock, 33 Conn. 513. Esek Cowen, for respondents. There was an implied warranty that the seed were genuine and merchantable. Cleu v. McPherson, 1 Bosw. 480; Howard v. Hoey, 23 Wend. 350; Reed v. Randall, 29 N. Y. 358; Messmore v. N. Y. Shot and Lead Co., 40 id. 422; 1 Story on Cont., § 514; 1 Pars. on Cont. 464; 2 Kent's Com. 479; Hawkins v. Pemberton, 51 N. Y. 198; Dounce v. Dow, 64 id. 411. There was an implied warranty that the seed was fit for the purpose for which it was bought. Hoe v. Sanborn, 21 N. Y. 552. The rule of damages was correct. Sedg. on Dam. 328, 329; Griffin v. Colver, 16 N. Y. 489; Passinger v. Thorburn, 34 id. 634; Milburne v. Belloni, 39 id. 53; Messmore v. N. Y. Shot and Lead Co., 40 id. 422; Flick v. Weatherbee, 20 Wis. 392; Parks v. Morris Ax and Tool Co., 9 Alb. L. J. 409; Wolcott v. Mount, 36 N. J. (7 Vroom) 272. Interest from the time the crop White v. Miller. Van would have been harvested and sold was properly allowed. Rensselaer v. Jewett, 2 N. Y. 135; Dana v. Fiedler, 12 id. 40; Fishell V. Winans, 38 Barb. 230. ANDREWS, J. [Omitting a question of incorporation.] We come now to the consideration of the questions involving more directly the merits of the action. The question whether there was a warranty by the defendants, that the seed sold to the plaintiff was "genuine large Bristol cabbage seed," which is the warranty found by the referee, must be deemed to be established by his finding, unless it is without support in the evidence. The contract for the purchase and sale of the seed was made under these circumstances: The defendants were growers of garden seeds for sale, and the plaintiffs were market gardeners raising vegetables for sale in the market. In 1867 they bought of the defendants cabbage seed, of the variety known as large Bristol cabbage seed, which produced Bristol cabbage. In the fall of 1867, Miller, one of the trustees of the defendants, informed the plaintiffs that they had raised that year 200 pounds of Bristol cabbage seed, like that the plaintiffs had had, and solicited them to come. early if they wished any. In February, 1868, the plaintiffs went to the seed store of the defendants to purchase seeds, and on making their business known to the defendants' clerk, he produced a printed catalogue of the seeds the defendants had for sale, and exhibited it to the plaintiffs; and among the seeds in the list was large Bristol cabbage seed. The plaintiffs then ordered seeds of different kinds, and among others, six pounds of "Bristol cabbage seed." The clerk made a memorandum of the kind and amount of seeds ordered, and promised to deliver them to the plaintiffs within a few days. Some days afterward the clerk put up the seeds, including six pounds of cabbage seed, and delivered them at Aiken's store, in Albany, for the plaintiffs, with a bill of parcels, as upon a sale by Miller to the plaintiffs. The cabbage seed was described in the bill as "six pounds large Bristol cabbage" seed. The doctrine that a bargain and sale of a chattel of a particular description imports a contract or warranty that the article sold is of that description, is sustained by a great weight of judicial authority. The cases of Seixas v. Wood, 2 Caines, 48, and Swett v. Colgate, 20 Johns. 196, based mainly upon the authority of the case of Chandler v. Lopas, Cro. J. 4, are, it must be admitted, adverse White v. Miller to this view. The case of Chandler v. Lopus has been overruled in England, and the cases in this State referred to have been often questioned, and Chancellor KENT, who took part in deciding Seixas v. Wood, intimates in his Commentaries a doubt whether the case was correctly decided. 2 Kent, 479. The case of Hawkins v. Pemberton, 51 N. Y. 198; 10 Am. Rep. 595, adopts, as the law in this State, the doctrine upon this subject now prevailing elsewhere, that a sale of a chattel by a particular description is a warranty that the article sold is of the kind specified; and this case was recognized in Dounce v. Dow, 64 N. Y. 411, as modifying the doctrine of Seixas v. Wood, and Swett v. Colgate. We think the modern doctrine upon the subject is reasonable, and proceeds upon a just interpretation of the contract of sale. A dealer who sells an article, describing it by the name of an article of commerce, the identity of which is not known to the purchaser, must understand that the latter relies upon the description as a representation by the seller that it is the thing described; and this constitutes a warranty. We content ourselves without further argument with referring to some of the cases bearing upon this question, which must, we think, be regarded as decisive. Barr v. Gibson, 3 M. & W. 390; Bridge v. Wain, 1 Stark. 505; Shepherd v. Kain, 5 B. & Ald. 240; Behn v. Burness, 3 B. & S. 749; Allan v. Lake, 18 Ad. & El. (N. S.) 561; Power v. Barham, 4 Ad. & El. 473; Borrekins v. Beran, 3 Rawle, 37; Henshaw v. Robbins, 9 Metc. 83; Hawkins . Pemberton, supra. The referee was, therefore, justified in finding that the defendants warranted the seed sold to the plaintiffs to be large Bristol cabbage seed, from the fact that the plaintiffs applied to purchase that description of seed; and that the seed delivered was designated in the bill of parcels as large Bristol cabbage seed. The fact that Chauncey Miller was named in the bill of parcels as vendor did not preclude the plaintiffs from treating the transaction as a sale by the defendants, and the representation as having been made by them. Miller was, in fact, acting as their agent. The negotiation for the purchase of the seed was made at the store of the society some days before it was delivered. It was sent in compliance with the plaintiffs' order made at that time. The bill of parcels was made for the purpose of showing that the seed sent corresponded with the order and the amount of the purchase, and not to show that the contract was the contract of the agent, or that he White v. Miller. was the vendor, and not the society. The plaintiffs could, perhaps, have elected to treat the warranty as the individual warranty of Miller, but they were not confined to that remedy. If, in fact, the sale was by the defendants, the plaintiff had the right to treat the contract and representation as theirs. The claim, that the trustees had no power to bind the society by the warranty in question, is not well founded. They had, as an incident to their power to make contracts of sale, the power to give the article sold a name and descriptive character; and, upon the warranty arising from a sale of seeds by designation, the society is clearly bound, irrespective of the question whether the trustees had general authority from the society to make an express warranty on sales. Aside from the warranty raised in this case by the description in the bill of parcels, there was, also, upon the sale in question, within the authority of Hoe v. Sanborn, 21 N. Y. 552, a warranty implied by law, that the seed sold were free from any latent defect arising from the mode of cultivation. It was decided in Hoe v. Sanborn, that upon a sale of a chattel by a manufacturer, a warranty is implied that the article sold is free from any latent defect growing out of the process of manufacture. The rule is based on the presumed superior knowledge of the vendor; and there seems to be the same reason for implying a warranty on a sale of seeds by the grower, that they are not defective from improper cultivation, as to imply a warranty of freedom from defects in the manufacture, on a sale by a manufacturer of the article made by him. The grower of seeds must be presumed to be cognizant of any omission, or negligence in cultivation, whereby they have been deteriorated or rendered unfit for use. It is claimed by the defendants that there was no breach of any warranty shown, assuming that a warranty was proved, for the reason that the seed sold were large Bristol cabbage seed. That the seed were Bristol cabbage seed is, as the defendants insist, established by the fact that they grew upon stocks of Bristol cabbage. The referee finds that the seed was raised upon Bristol cabbage stocks, but he further finds that these stocks were planted in the vicinity of stocks of other varieties of cabbage, and were fertilized by the pollen therefrom, and that, in consequence of the crossing of the varieties, the seed grown upon the Bristol cabbage stocks became impure, and were not genuine Bristol cabbage seed, but lost that character and quality, and that the plants raised by VOL. XXVII- 3 |