
    New York Monitor Milk Pan Company, App’lt, v. Philo Remington, Resp’t.
    
    
      (Court of Appeals,
    
    
      Filed April 10, 1888.)
    
    Contract — Sale of chattels—Warranty as to quality—Measure or DAMAGES.
    An article furnished under a contract, consisted of separable parts, and a defect in one of those parts could he remedied without, in the least, affecting or destroying the value of the other parts. Where one of said parts did not correspond with the warranty contained in the contract, Held, that it was error to allow damages to an amount including the value of the parts complying therewith.
    Appeal from a judgment of the supreme court, general term, fourth department, reversing a judgment in favor of the plaintiff, entered upon the report of a referee.
    
      W. H. Johnson, for app’lt; Thomas Richardson, for resp’t.
    
      
       Affirming 4 N. T. State Rep., 181.
    
   Finch, J.

We may assume, without deciding, that the plaintiff established a cause of action which entitled it to recover damages for the defective milk pans, and yet its recovery cannot be sustained for any such amount as that actually awarded. Each cooler manufactured consisted of separable parts, and a defect in one of those parts could be remedied without, in the least, affecting or destroying the value of the others. Each cooler consisted of an iron frame or standard supporting a vat, ,in which the enameled pans were placed. The latter were movable and separable from the rest of the structure, and were defective only in their lining of enamel, and that defect could be at once repaired by taking out the defective pan and substituting a perfect one of properly enameled iron, or, if the purchaser preferred, one made of tin. The loss in each case was represented by the expense of such substitution. When that was paid, the original value of the cooler was restored, and it was made just as good as if no defect had existed. That pans could he enameled so as to resist the action of lactic acid contained in milk, was demonstrated by the defendant’s manufacture of the Parks pans. These were the first that were made, and it is conceded that they fully answered the purpose designed.

But upon the trial, the plaintiff, instead of proving its actual damages by showing first the value of the pans if properly made, and then that of those defectively enameled, which probably was no more than their value as of old iron, sought by its proof to throw the whole expense of its enterprise, which proved not all successful, upon these few defective pans. Against the defendant’s objection proof was given of the bills paid by the plaintiff company for advertising which was over $500, and of ‘£ general expenses” amounting to more than $5,000. To these were added freight, commissions allowed agents, the salary and expenses of a supervising agent, the whole cost of the patterns, the expenses of the company’s treasurer and superintendent, and damages paid to purchasers. When it is remembered that about four hundred of the Parks pans first manufactured were sold before the Crowley or defective pans came upon the market, the grave error of charging all the expenses of the business upon the defendants is at once apparent.

But the referee, while admitting this improper evidence, did not make it the basis of the damages awarded. What he did determine is stated in his eleventh finding, which reads: “ That the pans contracted to be delivered under each contract would, on the second day of December, 1876, have been worth the sum of $5,239.19, and the pans that were actually delivered to the plaintiff had no market value whatever; ” and so the judgment was fixed at that precise amount, with interest. But the finding was utterly without evidence to support it.

No proof was given of the value of the pans, and the sum stated as such was simply the cost price of the coolers as paid to the manufacturer, and it was proved that of that cost price fifty-five per cent only was chargeable to the pans, and the balance to the standard and vats. But an explanation was made in a supplemental report.

The referee said that instead of the value of the pans he meant the value of the coolers, and so he never found or ascertained the value of the pans at all, but awarded the whole costs of the coolers for a defect in a separable part, capable of a complete remedy without destruction of or depreciation in the standards and vats which were not defective. Beyond that, in so far as he found the coolers worthless, he is controverted by all the evidence and every fact in the case. _ When the Crowley pans began to come back for defect in the enamel, the plaintiff never once abandoned or threw away the entire cooler.

On the contrary, in every instance, it took back the pan and replaced it with a new one, and so made the original bargain good at cost of the new pans alone. That was the plaintiff’s damage. It never lost at all the cost or the value of the standards and vats, but keeping that in its treasury as received from the purchasers, it got it a second time in the judgment appealed from. The standards and vats which were not claimed to be defective and which could be as easily equipped with good pans as with poor ones,' were first paid for by the purchasers and then again by the defendants. It is true that some items appear of damages paid to purchasers in money. How they came to be paid is not explained. The company on making sales gave to their customers a written or printed warranty, the form of which was proved on the trial, That warranty was that the porcelain would not. be affected by the acid of the milk and would not crack or chip off, and provided, as the consequence of the breach of the warranty, that the company should replace them with new ones. That they did, and if. they paid damages in money, besides replacing the pans, they did more than they covenanted to do. But these-damages, so far as proved, were small, and if added to the cost of the defective pans, the amount would fall far short of the damages awarded. It may be that the value rather than the cost of the -perfect pans, should have been taken, as. a basis, but that was not proved.

If there be in the case, evidence from which an approximate value could be derived which would include anticipated profits, it will be found in the statement of the market value of the Crowley coolers if they had been perfect. But they were perfect except as to the pans, and those could have been made perfect at the cost of manufacture, and so the profit have been realized; but if fifty-five per cent of the market value of the coolers be taken as that of the pans, the judgment is still very much too large.

It is suggested that we may reduce it. We ought not to-do that. There is a defect of proof. While we see clearly that the judgment is erroneous, it is impossible for us to say how much less it ought tobe. We might form an approximate judgment; but there has been a mistrial, and the general term properly ordered a new hearing.

The order of the general term should be affirmed, and judgment absolute be rendered against the plaintiff upon the .stipulation.

All concur.  