
    Edward Laufer, Resp’t, v. Boynton Furnace Company, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 11, 1895.)
    
    Evidence—Wabbanty.
    In an action to recover damages for breach of warranty of an apparatus for heating a greenhouse, plaintiff may testify as to the average number of flowers cut from the plants the previous year, in order to show the injury to the plants and loss of sales of cut flowers the plants would have produced, if a proper temperature had been maintained m the greenhouse.
    Appeal from a judgment, entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.
    
      M. H. Cardozo, for app’lt; Edward L. Frost, for resp’t.
   Brown, P. J.

The plaintiff was a florist, and in .January, 1892, entered into a contract with the defendant, whereby it agreed to furnish to him, and set up in Ms greenhouses, a hot-water heater, with pipes, according to certain specifications, and .gave to him a written guaranty that the boiler and radiators mentioned in the specifications “would heat the greenhouses to the desired temperature for the term of fifteen years,” provided they were kept in good workable condition. This action was brought to recover damages arising from a breach of the guaranty. Two causes of action were alleged in the complaint. In the first, a recovery was sought for damages to plants and loss of sales of cut flowers which the plants would have produced if a proper temperature had been maintained in the greenhouses ; and in the second, for the difference between the valué of the heater as it was and as it would have been had the guaranty been fulfilled. There was a conflict of testimony as to what.the guaranty was in reference to temperaturc. The plaintiff claimed that it was to be as high as seventy-five to eighty-five degrees in one of the houses, so as to permit the growth of delicate varieties of flowers; while defendant claimed that the desired temperature agreed upon was to be sufficient only for growing carnations and chrysanthemums, and that fifty degrees was sufficient for such purpose. There was no exception taken to the charge of the court, and there was no motion made to dismiss the complaint.

The only motion made was to dismiss the first cause of action, upon the ground that there was not sufficient evidence to go the jury as to what the plaintiff’s actual damages were. We are of the opinion that this motion was properly denied, and we find no reason for disturbing the verdict of the jury upon the facts. The court charged the jury, that, if the plaintiff was entitled to succeed, he had a right to recover—First, the difference in value between the heating apparatus he was entitled to receive under his contract and the heating apparatus he actually did receive; and, second, the difference between the value of the stock in his place which was injured or destroyed by reason of any defect in that apparatus before it was injured and the value of that stock after it had received such injury. For the purpose of showing the value of the plants, the plaintiff and his wife were permitted to testify, against the defendant’s objection and exception, to the average number of Sowers cut from the plants the year previous. We are of the opinion that this evidence was competent. z -

In the case of Swain v. Schieffelin, 134 N. Y. 471; 47 St. Rep. 910, the plaintiff was permitted to recover for the loss of customers and sales and profits thereon, and proof of sales in a corresponding period of a prior year was permitted.

In White v. Miller, 71 N. Y. 118, the court says:

“The character of the season, * * * the manner in which the plants set were cultivated, the condition of the ground, the results observed in the same vicinity, * " * * and other circumstances, may be shown to aid the jury, and from which they can ascertain approximately the extent of the damage resulting from the loss of a crop of a particular kind.”

In Wakeman v. Wheeler & Wilson Manufacturing, Co., 101 N. Y. 200; it was said:

“If there is no more certain method of arriving at the amount, the injured party is entitled to submit to the jury the particular facts which have transpired, and to show the whole situation which is the foundation of the claim and expectation of profit, so far as any detail offered has a legal tendency to support such claim.”

The plaintiff testified that he had thirteen years’ experience in growing flowers by artificial heat in the winter months, and that he knew how many flowers he could grow from a plant. It was entirely permissible for him to state his experience and the average number of flowers that he had cut from the various plants in the prior year. While the result based upon such evidence is somewhat speculative, it is no more so in reference to flowers than the prospective result from seeds and other crops, and is a most material fact to be considered in determining the value of the plants. It was a fact proper in this case for the jury to be informed of, and to consider in determining the amount of the loss that plaintiff had sustained.

The amendment allowed to be made to the complaint to conform that pleading to the proof was one clearly within the power of the court. It did not change the cause of action, or demand from the defendant any other defense than it had pleaded and given proof to sustain. Its sole result was to permit the plaintiff to recover such a verdict as the evidence had established. It was a matter that rested in the sound discretion of the trial court, and we find no reason to disagree with its judgment.

We have examined the other exceptions, and find none that require notice. The judgment must be affirmed, with costs.

All concur.  