
    Pierre V. C. Miller, Respondent, v. F. R. Patch Manufacturing Company, Appellant.
    
      ’Warranty that a. derrick will require a specified weight to break it-?-it survives the acceptance of the derrick — if the derrick Irreaks under a-less weight the cost of its ■ repair is recoverable.
    
    Á warranty that a derrick sold for use.in a particular, place would'require'a load of 250 tons to break it is an express warranty which will survive the acceptance of the derrick, particularly where it'appears that the vendor of the derrick 'wrote to the vendee a letter stating, “we fully guarantee machinery, and if the same gives out through any fault of ours, we will replace it, so that you do not need to hold back the payments on that account.” ■ ' .
    Where, in such á case, the derrick breaks under a strain of twenty-seven or twenty - . eight tons the vendee may retain possession of the derrick and bring an action, to recover damages for the breach of the warranty, and is entitled to recover therein the fair and reasonable cost of repairing the derrick, notwithstanding that the measure of damages ordinarily applicable in such an action is the dif- , ference between the actual value of "the chattel with its. defects'and' the value which it ¡would have had at the time of sale if it had conformed to the warranty.
    ■ Appe-ai! by the defendant, the F. R. Patch- Manufacturing Company, from a judgment of the Supreme Court in favor, of the plaintiff, entered in the office of the cleric of the County- of Queens on the 29th' day of December, 1903; upon the verdict of a jury, and also from, an order entered-in said clerk’s office on the- 4th' day of ' January, 1904, denying the defendant’s motion for a new trial made upon the minutes,
    
      Walter C. Flanders [Charles Wheeler Barnes with him on the brief], for the appellant.
    
      Alfred B. Cruikshank [J. C. Thomson with him on the brief], for the respondent. -
   Willard Bartlett, J.:

. In this action the plaintiff has recovered judgment against .the defendant upon a verdict awarding him $1,648'.75 damages for' breach of warranty upon the sale of a derrick. The parties to the contract were the American Stone Company and the defendant corporation. The plaintiff brought the suit as assignee of the American- Stone Company. There was sufficient proof to establish. the-alleged warranty. The evidence. authorized .the "jury td find that the defendant guaranteed that the derrick should have a lifting capacity of fifty tons with a factor of safety; of .five—the ;latter phrase meaning that it would' require ■ a load. of two hundred' and fifty tons to break' down' the derrick. As matter of fact, the derrick broke down while lifting a stone which .weighed only twentyrseven or twenty-eight tons. '

The warranty was of a character which survived the acceptance of the derrick by the American. Stone ■ Company; That it was intended to survive acceptance-is manifest from a letter written by Mr. F. R. Patch, the president of the defendant corporation,-in the name and-in behalf of the company, in' which'he said to Mr. Washington Hull, the president of the American Stone Company: “As I said to you, we fully guarantee machinery, and if the same gives onLthrongh any fault of ours, we will replace it, so that you do not need to hold back - the payments . on. that account.” The term ■machinery in this letter was broad enough to include "the whole of thé derrick and appliances furnished by the defendant, and was apparently so intended. There having been an express warranty, the vendee, upon a breach thereof, became entitled to maintain an action for damages, notwithstanding its retention of the derrick; (Day v. Pool, 52 N. Y. 416; Hooper v. Story, 155 id; 171.) At -the instance of the defendant, the. learned trial judge greatly restricted the issues as to the defect in construction which caused the derrick to collapse, charging the jury-as follows at. the- request of the defendant’s counsel: “ Before the plaintiff can recover the jury must believe that plaintiff has proved that the gudgeon -pin was the first thing to- break, and further, that the defendant liad warranted the pin against just such a strain as broke it; otherwise, their verdict must be for the defendant.” This was, doubtless because of the specific allegation in the complaint that the gudgeon pin or spindle'at the masthead of the- derrick was made of cast iron, which Was an insufficient and defective material, byreason of which latent defect' the pin broke, causing the fall of the' boom and mast, and the consequent damage. The appellant insists that the plaintiff failed to prove that the collapse was occasioned by the breaking of -the gudgeon pin, but I think that all'the facts and circumstances of the" acóidént, as narrated in tlie testimony, warranted the jury in concluding that the fall óf the derrick was actually- due to the insufficiency of this .pin;

It was contended upon the trial that the derrick did not have fair treatment at the hands, of the American Stone, Company, ánd that it was being used in a careless and' negligent manner at the time of ' the accident. This was denied, and, of course, presented a question for the jury, to whom it was very fairly submitted by the learned trial judge, with- instructions that the plaintiff could not recover if the derrick was caused to fall in consequence of having been used' in an unreasonable manner not contemplated by the covenant of warranty. • , , , , ■ ,

The measure of damages generally applicable in an action for breach of warranty is the. difference between the actual value of ■ the Object sold, with its defects,- and the value which it would have had at the time of sale if it had conformed to the warranty. - (Bruce v. Fiss, Doerr & Carroll Horse Co., 47 App. Div. 273, opinion by Cullen, J.) In '-the present case, however, the plaintiff has been allowed,to recover the fair and reasonable cost ofxrepairing the derrick so as to ptit the purchaser in the same position in respect to the. derrick as existed before the accident happened. -There was proof that the cost of repair was upwards of $1,800, but the jury awarded-the plaintiff only $1,500, with interest; I think the measure of damages adopted was permissible under the circumstances of -this case. The-" president of the defendant corporation visited the quarry in which the derrick was to be used before receiving the order therefor, and there can be n'a' doubt that the warranty had reference- to the -construction of a derrick to be operated in that particular place in the work of-removing stone. To this extent the warranty was special. Then thé letter from- Mr. Patch', in the passage already quoted, where hé wrote,. “ we fully guarantee machinery, and if the same gives out through any fault Óf ours, we will replace it,” clearly contemplates the expense of making good. any defect for which thé vendor was responsible as the obligation to' be assumed by the vendor in the event of a breach of warranty. This seems to bring-the case squarely Within thé rule “that the damages. must be such .as‘5iñay bé'fairly supposed to have entered into the contemplation of the parties; such as might na-turally be expected to flow from violation óf the contract; such as are certain both in their nature and in respect to the cause from which they proceed.” (Cassidy v. Le Fevre, 45 N. Y. 562.) In the case cited, which was an action upon promissory notes given for the purchase price of certain boilers, which proved to be defective and collapsed after delivery, the Court of Appeals held that the defendants might recoup all damages necessarily and legitimately resulting from the inferior character of the materials or the defective construction of the boilers. “ Had they claimed the cost and expense of talcing doym the boilers after the injury,” said Allen, J., “ and resetting them after they were repaired, they would have been entitled to it. That was a direct loss, legitimately and necessarily resulting from the defects in the boilers and the violation of the plaintiff’s contract.” And this was held notwithstanding the fact previously stated in the opinion that the contract of the plaintiff had no reference to the use of the engine and machinery sold for any special purpose or in any particular place.

I cannot see that any error of substance was committed in the conduct of the trial under review, and I think we should affirm the judgment and order appealed from.

Hirschberg, P. J., Woodward and Hooker, JJ., concurred.

Judgment and order affirmed, with costs.  