
    Rutsen Hunt, App’lt, v. Charles A. Van Deusen, Resp’t.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed January, 1887.)
    
    1. Contract—Executory—Warranty—What will amount to.
    The plaintiff had live hogs which he offered to butcher and sell to this defendant .To an inquiry by the defendant whether there were any of coarse or unmerchantable quality among them, he replied no, that they w ere all a choice, first-class lot. The defendant agreed to buy the hogs at a price stated. In an action for the price agreed upon: Held, that these representations by the plaintiff constituted a warranty of quality.
    2. Same—Breach of warranty—Measure of damages.
    
      Held, that upon a breach of warranty, the measure of damages was the difference in value between the pork as it was and as it was represented to be.
    3. Same—Pact that vendee saved himself from loss does not exempt VENDOR FROM LIABILITY FOR BREACH ON WARRANTY.
    
      Held, that notwithstanding the fact that the vendee saved himself from actual loss, it cannot avail the vendor; he must respond according to the terms of the contract.
    4. Evidence—Incompetency of.
    
      Held, that evidence by others that they purchased pork of like kind to that claimed to be not according to agreement, and that they were unable to detect a difference between that and the other pork, and as to their me: hod of treatment of it was incompetent. That the defendant could not be prepared to meet these individual cases, but only to establish the general fact in such cases, and the particular fact in the present case.
    The plaintiff had fifteen live hogs and offered to butcher them and sell the pork to the defendant. The defendant asked if there were any stags, course or unmerchantable hogs among them; he said no, they were all a choice first-class lot. The defendant agreed to buy the pork at seven dollars per hundred. Some time afterwards the plaintiff delivered the dressed hogs at the store of the defendant, during his absence. Upon examination one of them of 394 pounds weight was found to be very coarse. It was proved on the trial that it was when butchered a hog from which only one testicle had been taken in castration, the other not being found. Evidence was given tending to show that the pork of such an animal was not merchantable, and was of little value.
    The plaintiff had judgment for the price of the pork; which judgment was reversed by the county court, and the plaintiff appeals.
    
      Newkirk & Chase, for app’lt; Hawes & Cochrane, for resp’dt.
   Landon, J.

The representations upon which the defendant agreed tq buy the pork were a warranty of quality. There was a substantial breach of that warranty, that was not waived by the acceptance of the pork. Brigg v. Hilton, 99 N. Y., 517.

The plaintiff cites Gilbert Car Co. v. Mann (3 N. Y. State Rep., 301), decided by us. We held in that case that bhe car which the plaintiffs manufactured and delivered under an executory contract containing a warranty as to quality, was accepted under such circumstances as precluded the defendant from insisting upon the warranty. The defendant in that case, notwithstanding the warning of the plaintiff, insisted upon the use of the green wood which caused the defect. The defendant here did nothing to waive his right to rely upon the warranty.

The measure of damages was the difference in value between the pork as it was and such pork as it was represented to be.

The defendant made the pork into sausages and lard. He was required to answer notwithstanding his objection that he sold the sausage and lard at the ordinary price. The object of this was to show that by his methods he protected himself from actual loss. But tliat fact does not avail the vendor. He must respond according to the terms of the contract, and cannot because of the dexterity of the vendee escape from the damages measured by the rule above stated. Muller v. Eno. 14 N. Y., 597.

It was not competent for the plaintiff to prove as he did by several witnesses that each one of them had had a hog of this description, and how he treated it, and that he did not discover that the pork differed from his other pork. The defendant could not be prepared to meet these individual cases, but only to establish the general fact in such cases, and the particular fact in this case.

The judgment should be affirmed with costs.

Learned, P. J.', Bocees, J., concur;  