
    Oliver Landreth and Others, Appellants, v. Archibald F. Wyckoff, Respondent.
    
      Warranty as to the character of seed—what notice of disclaimer of responsibility is insufficient — measure of damages.
    
    In an action brought to recover the purchase price of certain seed sold by the plaintiffs, who were seed growers, to the defendant, a farmer, in which the defendant sets up as a counterclaim a breach of certain warranties as to the character of the seed, the fact that upon the left-hand corner of the bill rendered by the plaintiffs to the defendant was a notice printed in small type in these words: “ D. Landreth & Sons give no warranty, express or implied, as to description, quality, productiveness or any other matter of any seeds they send out, and they will not be in any way responsible for the crop. If the purchaser does not accept the goods on these terms they are at once to be returned,” does not preclude the defendant from recovering upon the counterclaim where the latter testifies that although he received the bill before planting the seeds he did not observe the disclaimer of responsibility in the bill until it was brought to his attention upon the trial.
    The damages recoverable, for the breach of such a warranty are represented by the value of the crop which would ordinarily have been produced if the seed had been as warranted, less the expense of raising such crop and less also the value of the crop actually raised.
    Appeal by the plaintiffs, Oliver Landreth and others, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the defendant, entered on the 8d day of June, 1901, upon the decision of the court.
    
      Uriah W. Tompkins and Cromwell G. Macy for the appellants.
    
      Charles B. Law, for the respondent.
   Willard Bartlett, J.:

This is an action by seed growers to recover the purchase price of certain seeds sold by,them to a farmer. The purchase included seeds of the Early Summer Flathead cabbage, seeds of the Long Blood beet, and seed peas of the variety known as Landreth’s Extra. Early pea. In regard to these seeds, the defendant set up a breach of warranty as the basis of a counterclaim for damages; and upon this counterclaim he has recovered a judgment of $510 against the plaintiffs.

As to the cabbage and beet seed, there was evidence tending to-show that the seeds' were impure by reason of cross-fertilization, thus bringing the case within the doctrine of White v. Miller (71 N. Y. 118); that upon the sale of seeds by the grower there is an implied warranty that they are free from any defects arising from improper and negligent cultivation. As to the seed peas, the defendant'- testified that the plaintiffs’ agent who made-the sale expressly guaranteed them to “pick four or five days earlier than any other seed on the market; ” and apart from this express warranty the evidence sufficed to bring this part of the case within the rule laid down in Van Wyek v. Allen (69 N. Y. 61) to the effect that “ if one goes to 'another and says, to him that he desires an article for a certain purpose, and that other, knowing that the first one relies upon his complying with his desire, furnishes an article, the law implies that that article is delivered with a warranty that it accords with, the, desire.”

■ To rebut any implication of warranty the plaintiffs' rely largely upon a notice printed in small type at the upper left-hand corner of the bill which they rendered to the defendant, which notice' is in these words: “ D. Landreth & Sons give no warranty, express or. implied, as to description, quality, productiveness or .any other matter of any seeds they send out, and they will not be. in any way responsible for the crop. If the purchaser does not accept the goods on these terms they are at once to be returned.” The defendant testified that although he receded the bill before planting the seeds he did not then observe this disclaimer, and indeed had never seen it until it was brought to his attention upon the trial. Whatever might have been its legal effect, if lie had become cognizant of its existence and purport before using the seeds, it cannot be deemed to have entered into or altered the contract between him and the seed growers under the circumstances.

The rule of damages applicable to the breach of such a warranty as that relied upon in this case is stated in Passinger v. Thorburn (34 N. Y. 634), where the subject of the sale was Bristol cabbage-seed, and it was held that the damages properly recoverable would be the value of a crop of Bristol cabbages, such as the jury should believe would ordinarily have been produced that year, deducting all expense of raising the crop, and also deducting the product or value of the crop actually raised. This rule was expressly approved iii White v. Miller (supra) after a careful reconsideration. If it had been followed in the Municipal Court I think this judgment would have been unassailable. The minutes show, however, that in arriving at the amount of damages the trial justice could not have taken into consideration the expense of raising crops of cabbages and peas such as he found would have been produced by good seed. The reason for this conclusion is that the record contains no testimony whatever as to the cost of cultivating such crops, and yet it was essential to ascertain that cost and deduct it from their value under the rule in Passinger v. Thorium. There is a little testimony as to the cost of cultivating beets, but it is not clear that even that applies to a normal crop.

This defect in the proof deprives the award of damages of an essential support, and in my opinion requires us to grant a new trial.

Goodrich, -P. J., Woodward and Sewell, JJ., concurred Hirsohberg-, J., concurred in result.

' Judgment of the Municipal Court reversed and new trial ordered,, costs to abide the event.  