
    Clarence S. Lunt, Respondent, v. Brown Brothers Company, Appellant.
    Fourth Department,
    January 12, 1916.
    Sale — action for breach of warranty for sale of trees—breach of contract — measure of damages — appeal.
    Where, in an action to recover damages because apple trees purchased by the plaintiff from the defendant were subsequently discovered to be of an inferior variety, the jury were instructed that there was an implied warranty by the defendant that the trees delivered were of the variety stated, and that if they were not, there was a breach of warranty for which plaintiff could recover damages, and no exception was taken by defendant to this instruction, he cannot on appeal insist that the failure to deliver the trees as agreed was a breach of contract and not a breach of warranty.
    The measure of plaintiff’s damages in such a case is the difference between the value of the farm as it was and as it would have been had the trees been of the stated variety, and the plaintiff should have been allowed to give testimony on this theory. But where the trial court has measured the damages by the difference between the value of the trees as they were at the commencement of the action and as they would have been had they been of the stated variety, and the evidence admitted on this theory has led to the same result, the judgment should be affirmed.
    Appeal by the defendant, Brown Brothers Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 1st day of July, 1915, upon the verdict of a jury, and also from an order entered in said clerk’s office on the same day denying defendant’s motion for a new trial made upon the minutes.
    
      George 8. McMillan [Letois, McKay, McMillan & Bown, attorneys], for the appellant.
    
      George 8. Van 8chaick, for the respondent.
   Per Curiam:

Appellant complains only of the rule for the measure of damages adopted by the trial court.

Plaintiff, a farmer, desiring to set out young trees for an orchard, purchased from defendant, a grower of nursery stock, a quantity of young Baldwin apple trees for that purpose. The trees delivered were represented to be of that variety. Whether they were such could not be discovered by plaintiff on inspection of the trees delivered or until they began to bear fruit. Some four or five years after the trees were set out, it was discovered when they began to bear fruit that they were not Baldwin apple trees but were trees of an inferior variety. The jury were instructed that there was an implied warranty by defendant that the trees delivered were Baldwin apple trees, and that if they were not, there was a breach of the warranty for which plaintiff could recover damages. No exception was taken by defendant’s counsel to these instructions. He urges now that the failure of defendant to deliver Baldwin apple trees as agreed was a breach of contract or failure to perform the contract, and not a breach of warranty.

We think the appellant is not in a position to raise the question here in the absence of an exception to the charge as made and since no request was made to charge otherwise. We are not called upon, therefore, to decide whether the rule for the measure of damages is different as between a breach of warranty and a breach of contract.

Plaintiff sought to prove as the proper measure of damages the difference between the value of his farm as it was at the time he discovered that the trees were not Baldwin apple trees and the value as it would have been had the trees been of that variety. The court excluded the evidence on the objection of defendant’s counsel. The rule for measuring plaintiff’s damages adopted by the trial court was the difference between the value of the trees at the commencement of the action as they were and as they would have been had they been Baldwin apple trees, and plaintiff gave evidence as to this difference in value.

We think the measure of plaintiff’s damages is the difference between the value of the farm as it was and as it would have been had the trees been Baldwin apple trees, and plaintiff should have been allowed to give the testimony offered on that theory, but we are also of opinion that the rule adopted by the trial judge has lead to the same result, inasmuch as the witnesses who testified to the value of the trees as they were and as they would have been if Baldwin apple trees, placed their value upon the trees as they stood in the ground for use as an orchard, and so, in effect, gave the amount which the trees added to or reduced the value of the farm.

We find no error which would justify a reversal of the judgment.

The judgment and order appealed from should be affirmed, with costs.

All concurred.

Judgment and order affirmed, with costs.  