
    John H. Prentice, and others v. Henry A. Dike, and others.
    When an action is hronght for the breach of an implied warranty, the existence and terms of the warranty, as material traversable, facts must be alleged in the complaint.
    The sellers of wool knew that it was purchased by the plaintiffs for the purpose of being manufactured into hats, and that if there was any cotton in it, it would be unfit for the purpose intended, but they did not warrant that it was fit for that purpose, but only that the flocks sold contained no cotton.
    
      Held, that the jury had no right to infer from the evidence, that the defendants meant to warrant that the wool would be fit for the purpose for which they knew it was bought, the only warranty which it was proved that they gave, being restricted in terms to the fact that there was no cotton in the wool.
    
      Held, that the only damages which the plaintiffs were entitled to recover for the breach of this warranty, was the difference between the market value of the wool in its actual state, and what it would have been worth had it contained no cotton, with interest on that difference.
    Order denying a new trial affirmed, with costs.
    (Before Duer, Bosworth and Woodruff, J.J.)
    November, 1856.
    
      The action was brought to recover damages for the breach of a warranty on the sale of wool.
    The complaint alleged, that the defendants, in consideration that the plaintiffs would buy of them a lot of merchandise called flocks, for the sum of $200T£¡r; promised that the merchandise was free from any mixture of cotton; that the plaintiffs, in reliance upon this promise, bought the merchandise for the price demanded, and that at the time of the making of the promise by the defendants, the merchandise so bought, did contain a mixture of cotton, and was of no value to the plaintiffs; but on the contrary, by being manufactured with other materials in the course of the business of the plaintiffs, depreciated greatly the value of such materials and of the manufactured articles, and that by reason of the premises they the plaintiffs had sustained damages to the amount of $1000, for which sum judgment was demanded.
    The answer of the defendants denied the making of the promise stated in the complaint.
    The cause was tried upon these pleadings, before Woodruff, J., and a jury, in March, 1856.
    It was proved, upon the trial, that the plaintiffs were engaged as partners in the business of manufacturing wool and fur hats, and that the defendants were dealers in wool; that in May, 1855, two foremen in the service of the plaintiffs called at the store of the defendants, and asked the defendant Dike whether he had any flocks that would suit their purpose, and that he replied that he had some that he thought would suit them; that one of the foremen, on examining one of the bags containing the wool, said that there was cotton in it, and that Dike said no, and that he guaranteed that there was no cotton in it. The sale was then made for the price mentioned in the complaint.
    It was then proved, on the part of the plaintiffs, that the flocks of wool which they so purchased, did contain a mixture of cotton. The plaintiffs’ counsel then offered to prove that this fact was not, and could not have been discovered until the wool was used in the manufacture of hats, and he also offered to show the number of hats that were manufactured with a mixture of the cotton found in the wool, and averred that the plaintiffs were entitled to recover, as damages, the loss which they had sustained in the sale of these hats from that cause.
    
      The Judge excluded the evidence so offered, and the plaintiffs’ counsel excepted to the decision. Evidence was then given, on both sides, as to the value of the wool in its actual state, and what would have been its value had it contained no cotton.
    When the testimony was closed, and the case had been summed up by the counsel, the Judge charged the jury that the only damages that the plaintiff could recover against the defendants, for the breach of their warranty on the sale of the goods, was the difference between the market value of the article sold as it was, and what it would have been worth had it been of the description it was represented to be, with interest on that difference.
    To this instruction the counsel for the plaintiffs excepted.
    The jury found a verdict fór the plaintiffs for $63.14.
    The plaintiff moved, at Special Term, upon a bill of exceptions, for a new trial, and the motion was denied, with costs.
    The plaintiffs appealed from this decision, and it was upon this appeal that the case was now heard.
    
      E. Terry, for the plaintiffs, appellants.
    We contend that the rule “ caveat emptor” does not apply where an article is sold for a particular purpose. The seller then undertakes that the article shall be fit for that purpose, Jones v. Bright ( 536). The defendants were, therefore, hable on their implied warranty that the goods were suitable for the purpose for which they were bought. (Van Brachlin v. Fonda, 12 John. 468.) Even upon the supposition that such a warranty cannot be implied, the Judge upon the trial should have admitted the evidence offered as to the difference in value of the hats manufactured from a defective material, and what would have been their value if manufactured from the material as guaranteed; and he should have instructed the jury that the plaintiffs were entitled to recover that difference as damages. They were recoverable as consequential damages, immediately resulting from the breach of the warranty. (Sedgwick on Damages, 292; 2 Parsons on Contracts, 486; Eggleston v. Macauly, 1 McCord, 379.) The counsel referred to several other cases as analogous, and insisted that all the exceptions stated in the case were well taken, and, consequently, that a new trial ought to be granted.
    
      
      A. Underhill, for the defendants, respondents.
    The only proper rule of damages for a breach of warranty on the sale of personal property, is the difference between the market value of the article if sound and the market value in its unsound state. (2 Hill, 288; 4 Hill; 5 Hill, 492, S. C. affirmed; 3 Denio, 406.) The rule is in fact elementary. (Sedgwick on Damages, 290; Parsons, on Contracts, 486; 2 Kent’s Commentaries, 480, n. a.) In all the cases where larger damages are allowed, there was not a mere warranty, but some other express stipulation was connected with it. This distinction is clearly stated by Justice Cowen in the opinion which he delivered in Blanchard v. Ely, (21 Wend. 342,) and is sustained by the authorities to which he refers.
    There was, therefore, no error in the exclusion of evidence by the Judge on the trial, nor in his charge to the jury, and the order appealed from should be affirmed.
   By the Court. Duer, J.

It would be a conclusive answer to the position upon which the counsel for the plaintiffs seemed disposed to lay the stress of his argument, namely, that there was an implied warranty that the goods purchased should be fit for the purpose for which it was known they were bought, that no such warranty, nor any facts from which it could arise, are alleged in the complaint. We cannot doubt, however, that the existence and terms- of an implied warranty, as material and traversable facts, are just as necessary to be alleged in the complaint, as those of an express warranty, where in each case the breach of the warranty is the cause of action, but as this objection to the argument, on the part of the plaintiffs, was not urged by the counsel upon the -trial, nor upon the hearing before us, we must presume that it was meant to be waived, and shall, therefore, place our decision upon other grounds.

Although, when goods are ordered and manufactured for a particular purpose, there is an implied warranty that they shall be fit for the purpose specified, we know of no adjudged case in which such a warranty has been implied where the contract was merely for the sale of. goods in their actual state, and certainly no such doctrine is to be found in any of the cases to which we were referred. We are satisfied, that, if there is any such decision, it will be found, upon examination, that the facts in the case were widely different from those in the case before us. We are satisfied that such a warranty cannot be implied, either by the court or jury, merely from the facts that the purpose for which the goods were bought was known to the seller, and that he said at the time that, in his opinion, they were suitable for the purpose intended; still less can the warranty be implied, when an express warranty is proved to have been given, limited by its terms to a distinct and independent fact. We think that such an express warranty excludes the supposition that any larger one was intended than its •terms embrace.

Hence, if the plaintiffs, or their agents, in the present case, desired a larger warranty than the terms of the express warranty embraced, they should have required it to be given as a condition of their purchase: they had no right to rely upon a larger warranty as implied.

Hor can we assent to the second proposition, upon which the counsel for the plaintiffs insisted, namely, that the plaintiffs were entitled to recover the loss which they sustained in the sale of the hats containing a mixture of cotton, as consequential damages immediately and necessarily resulting from a breach of the express warranty as proved. These damages were not in any legal sense a necessary consequence of a breach of the terms of the warranty, they resulted solely from the use of the goods in the manufacture of hats, but this was a use to which the plaintiffs were under no necessity of applying the goods; they were at perfect liberty to apply them to a different purpose, or to sell them in their actual state. It is true that the damages which the plaintiffs claimed necessarily resulted from the unfitness of the goods for the purpose for which they were bought, but we have already shown that there was no warranty on the part of the defendants that the goods should be fit for the purpose intended. To hold that the defendants were liable for the damages claimed, would be to contradict ourselves by saying either that the terms of the express warranty embraced the fitness of the goods, or that there was an implied warranty of the same purport. Satisfied that there was no such warranty, express or implied, we cannot hold the defendants liable for damages resulting from its alleged breach. In truth, the second proposition of the learned counsel, although different in words, was in substance the same as Ms first. It asserted in a different form the existence of an implied warranty.

It follows, from these observations, that the true and only rule of damages applicable to the case was exactly that wMch the Judge upon the trial instructed the jury to follow, and as there was no error in his charge there was certainly none in Ms exclusion of the evidence that had been offered to prove that the plaintiffs had in fact sustained the whole loss wMch they claimed as damages to recover; tMs evidence, if there was no error in the charge, was properly excluded as irrelevant, since it had no bearing upon any question that the jury could have been required to determine.

As none of the exceptions taken on the trial can be allowed, the order denying a new trial must be affirmed, and the appeal be dismissed, with costs.  