White v. Miller.

the plaintiffs from the seed purchased from the defendants, with a very few exceptions, in consequence of such crossing, were of no known variety of cabbage, and were of no value except as food for cattle. The evidence on the part of the plaintiffs shows that they set out 105,000 plants raised from this seed, of which 100,000 lived and grew vigorously, but about 200 only produced Bristol cabbages. That the defendants intended to sell, and the plaintiffs to buy seed which under proper cultivation, if it grew at all, would produce Bristol cabbages, is evident. The defendants knew that the plaintiffs were market gardeners, and desired this particular variety of seed. Bristol cabbages were regarded as a valuable variety for marketing. The defendants raised the seed, and it was not Bristol cabbage seed, within the meaning of the warranty, whatever its botanical or scientific designation might be, unless it would produce Bristol cabbages. Whether the seed was Bristol cabbage seed within the warranty depends not upon the origin of the seed, or the stocks upon which it grew, but upon the fact whether Bristol cabbages as known in the market could be raised therefrom. The contention of the defendants that the warranty was not broken, if technically, or in the language of botanists, the seed was Bristol cabbage seed, cannot therefore be sustained. But, if the defendants are right upon this point, the question would still remain whether there was a breach of the implied warranty; that the seed was free from defects arising from improper and negligent cultivation.

The referee, in fixing the damages, followed the rule laid down. in Passinger v. Thorburn, 34 N. Y. 634, which was also an action. for a breach of warranty, in the sale of cabbage seed. The defendant in that case warranted the seed to be Bristol cabbage seed, and that it would produce Bristol cabbage. The court held, all the judges concurring, that the plaintiff was entitled to recover the difference in value between the crop raised from the defective seed, and a crop of Bristol cabbage, such as would ordinarily have been produced in the year in which the seed was to be sown. The learned judge, who delivered the opinion, referred to a large number of authorities as sustaining the rule adopted by the court; and, among others, to the case of Randall v. Roper, E. B. & E. 84, in which it was held that in an action on a warranty, made by the defendants to the plaintiff, on a sale by the former to the latter of seed barley, that the seed sold was "chevalier" seed barley, but

White v. Miller.

which was, in fact, barley of an inferior quality; the plaintiffs, who had resold the barley, with a similar warranty, could recover of their vendors the loss sustained by the sub-vendees, measured by the difference in value between the inferior crop produced and that which might have been produced from "chevalier" barley. The case of Passinger v. Thorburn was approved in Milburn v. Belloni, 39 N. Y. 53, and was said by the court to be decisive of the case then under consideration. In Wolcott v. Mount, 36 N. J. 262; 13 Am. Rep. 438; 20 id. 425, and Fleck v. Weatherton, 20 Wis. 392, the rule adopted in Passinger v. Thorburn was approved and applied by the court. We think the case of Passinger v. Thorburn should be adhered to. It was carefully considered and decided, and we are not prepared to say that the rule there adopted is a departure from correct principle. Gains prevented, as well as losses sustained, may be recovered as damages for a breach of contract, where they can be rendered reasonably certain by evidence, and have naturally resulted from the breach. Masterton v. The Mayor, etc., 7 Hill, 61; Griffin v. Colver, 16 N. Y. 489; Messmore v. The N. Y. Shot and Lead Co., 40 id. 422. But mere contingent or speculative gains or losses, with respect to which no means exist of ascertaining with any certainty whether they would have resulted or not, are rejected, and the jury will not be allowed to consider them. Can it be said that the damages allowed in Passinger v. Thorburn are incapable of being ascertained with reasonable certainty by a jury?

The character of the season, whether favorable or unfavorable for production; the manner in which the plants set were cultivated; the condition of the ground; the results observed in the same vicinity where cabbages were planted, under similar circumstances; the market value of Bristol cabbages when the crop matured; the value of the crop raised from the defective seed; these and other circumstances may be shown to aid the jury, and from which they can ascertain approximately the extent of the damages resulting from the loss of a crop of a particular kind.

The referee allowed interest on the damages from the time the crop would have been harvested and sold. We are of opinion that this was erroneous. The demand was unliquidated, and the amount could not be determined by computation simply, or reference to market values. McMahon v. N. Y. & E. R. R. Co., 20 N. Y. 469; Smith v. Velie, 60 id. 106; Sedg. on Dam. 377.

White v. Miller.

The remaining questions arise upon exceptions taken by the defendants to the admission or rejection of evidence, and without passing upon the validity of the other exceptions of this character we are of opinion that the referee erred in allowing the conversation between Chauncey Miller and the plaintiff White, at the interview between them, in the fall of 1868, to be given in evidence. This conversation occurred nearly eight months after the sale of the seed, and the making of the warranty upon which the action is brought. If the declarations of Miller on this occasion were admissible to bind the society, they furnished very material evidence to sustain the plaintiffs' case. The plaintiffs sought to establish among other things, that the defect in the seed was owing to improper and negligent cultivation, thereby raising an implied warranty, in addition to the warranty arising out of the description in the bill of parcels; and it was also an essential part of their case, to establish that the seed sold were not Bristol cabbage seed; and this they sought to show, by proving by gardeners and other persons who had purchased seed of the defendants of the same kind as that sold to the plaintiffs, that their crops had also failed, and that the seed did not produce Bristol cabbage. The admissions of Miller, in the conversation proved, tended to establish both of the facts referred to, viz.: that the seed was inferior and mixed, owing to the improper cultivation, and that it would not produce Bristol cabbage. He stated in the conversation, that the impurity of the seed was owing to planting the Bristol cabbage stocks in the vicinity of stocks of the red cabbage, and that the society had, in consequence of the defective character of the seed, lost their own crops of cabbage in that year. The proof of this conversation was objected to on several grounds; and among others, that the declarations of Miller, when not engaged in the business of the society, were not admissible. The general rule is, that what one person says out of court is not admissible to charge or bind another. The exception is in cases of agency; and in cases of agency, the declarations of the agent are not competent to charge the principal, upon proof merely that the relation of principal and agent existed when the declarations were made. It must further appear that the agent, at the time the declarations were made, was engaged in executing the authority conferred upon him, and that the declarations related to, and were connected with the business then depending, so that they constituted a part of res gestæ. In

White v. Miller.

Fairlie v. Hastings, 10 Ves. 127, Sir WILLIAM GRANT expressed with great clearness and accuracy, the doctrine upon this subject. He said: "What an agent has said may be what constitutes the agreement of the principal; or the representations or statements. made may be the foundation of, or the inducement to the agreement. Therefore, if a writing is not necessary by law, the evidence must be admitted, to prove the agent did make that statement or representation. So, with regard to acts done, the words with which these acts are accompanied frequently tend to determine their quality. The party, therefore, to be bound by the act must be affected by the words. But except in one or the other of these ways, I do not know how what is said by an agent can be evidence against the principal. The mere assertion of a fact cannot amount to proof of it, though it may have some relation to the business in which the person making that assertion was employed as agent." See, also, Story on Ag., §§ 134,137; Thallhimer v. Brinckerhoff, 4 Wend. 394; Hubbard v. Elmer, 7 id. 446; Luby v. H. R. R. R. Co., 17 N. Y. 131. The rule that the declarations of the agent are inadmissible to bind the principal unless they constitute the agreement which he is authorized to make, or relate to and accompany an act done in the course of the agency, is applicable in all cases, whether the agent is a general or special one, or the principal is a corporation or private person. Angell & Ames on Corp., § 309; 1 Greenl. Ev., § 114a.

The conversation with Miller was inadmissible within the rule stated. It was not a part of any contract between the society and the plaintiffs, nor was it connected with any business which Miller was at the time transacting for the defendants. The plaintiffs had not then, so far as it appears, made any claim that the defendants were liable on the warranty, or that the failure of the crop was owing to a defect in the seed. The plaintiff White states that up to the time of the conversation he had not been able to account for the failure. He had written to Miller before the conversation, and requested him to look at the crop, and to explain, if he could, the cause of the failure; and not receiving an answer, he went to see Miller, when the conversation referred to occurred. Miller at this time made no contract or arrangement with White for a settlement or adjustment of any liability incurred by the society, and he had no authority to bind the society if he attempted to do so, to pay the large damages subsequently claimed by the plaintiffs. The Covenant expressly declares that no important contract made by the

trustees shall be considered valid without the previous approbation of the ministry and elders. An agreement to pay several thousand dollars damages on a sale of thirty-six dollars' worth of seed, would be an important contract, beyond the power of the trustees alone to make.

For these reasons, we are of opinion that the referee erred in the admission of the conversation in question.

The evidence was important, and we cannot say that it did not influence the result. For the error in admitting it, the judgment should be reversed and a new trial granted.

All concur.

RAPALLO and MILLER, JJ., concur in opinion as to question of evidence, and in result on other grounds.

A procured the execution by B, his intended wife, of an agreement by which, in consideration of $500 to be paid to her if she survived him, she agreed to relinquish all her rights in his property and estate. He represented to her, without reading, and without her reading, the agreement, that she was to receive $500 in cash, $500 if she survived him, and the deed of a house and lot. Nothing whatever was ever given her under the agreement. In proceedings after his death, held, that the agreement was void, and the widow was entitled to her distributive share in his estate.

Ante-nuptial agreements are severely scrutinized by the courts, and owing to the confidential relations of the parties, it seems that the presumption is against their validity, and that the burden of proof is upon the husband to prove the perfect fairness of the transaction. (See note, p. 26.)

A

PPEAL from a judgment modifying a surrogate's decree on final accounting of the respondent, widow of the intestate, as administratrix. The surrogate credited her with $500, and denied her any distributive share in the estate. The Supreme Court struck out that credit, and gave her her distributive share. The other facts appear in the opinion.