
    George M. Depew, Respondent, v. The Peck Hardware Company, Appellant.
    Fourth Department,
    July 9, 1907.
    Sale—implied warranty — measure of damage — evidence — quality of goods sold to other parties.
    On the .sale of- seed of a certain kind which cannot be distinguished from-other seed by ordinary inspection, there is an implied warranty by the seller that the , seed is of the kind ordered, which warranty survives acceptance.
    When the seed sold is not of the kind ordered by the buyer, who is afterwards compelled to plow up, and destroy the crop, the measure ;of damages is the dif- • fererice between the value of the crop actually grown-and the . value-of what ■ would have been produced had the seed been of the kind ordered.
    When the plaintiff shows that the crop raised had no value and the defendant gives no proof to the contrary, he cannot object that on the question óf damage the plaintiff did not prove the value of the crop raised, for being of rió value there was nothing to deduct '.irom the value: of the crop Which: would have been raised had the seed been of the kind ordered. •
    When the plaintiff ordered alfalfa seed, which is a perennial not maturingtill the , ■ second year, but the seed furnished was mostly that of a different and' worthless plant, which the plaintiff was required to'plow up t-o'reduce the damage,'the defendant cannot object that the-plaintiff had not proved the probable vaiué of - the crop if it had been, allowed to mature. :
    In an action to recover damages sustained by the sale of worthless seeds, the . buyer is entitled to recoverthe cost, of tilling the land so as to replace it in. its original condition and the cost of seed'for a second.sowing..
    When in such action the plaintiff shows that the majority of the seed sold f'cir ■ alfalfa was trefoil, a worthless plant,-and the defendant contends that the crop was. contaminated by trefoil seed from the adjoining highwaj', the plaintiff in order to disprove that claim may show that oil an. expert analysis of similar . seed furnished by the defendant to another person, it was .found to consist chiefly of .trefoil. •'•»'• ' " '. ■
    ■Robson,- J., dissented in part. •
    .Appeal "by. the defendant,' the Peck Hardware Company-,, from a judgment of the County Court of Ontario county .in-favor ,qf • the plaintiff, entered in the'office, of the clerk of-said county-on the . 19th day of June, 1906, Upon the verdict of a jury,, and also from ' ’ an order entered in said clerk’s, "office on the 10th day of July, 1906, denying . the defendant’s" motion for a- new trial made upon .the minutes,' . ' ■ A--.
    
      
      Frank A. Christian, for the appellant.
    
      Royal B. Scott, for the respondent.
   Spring, J.:

The.plaintiff, a farmer, purchased of the defendant, in the spring of 190Í, five bushels of alfalfa seed to be sowed on his farm. Ten acres were covered with the seed, and in the late summer the growth was. cut and allowed to remain • on the land, which was proper husbandry - as no crop is expected the first year. In the spring of the following year there was a fairly heavy growth on the land, but the product came out with yellow, blossoms all over the field. - The blossom of' the alfalfa plant is purple, but the plaintiff and.his tenant were unfamiliar with' alfalfa, and supposed at first the crop was that plant. In June the field was mowed, but only a little of the cutting was saved. The weather was rainy and the : bulk of it was piled up and eventually used as fertilizer. The plaintiff soon discovered that the yellow blossoms carné from trefoil, a weed not useful or marketable, although not noxious. He ■also found scattered over the field spots of dodder growth. These patches were .from one to seven or eight feet in circumference. This weed is particularly ruinous to alfalfa, and can only be extirpated by burning and then plowing-the land.

The- proof oh the part of the plaintiff showed that the-trefoil exceeded in quantity the alfalfa growth — some witnesses Stating that more than three-fourths of the product was of the trefoil. The plaintiff' shortly after-the first cutting plowed the land and reseeded it to alfalfa, and has sued the defendant for his loss, alleging that it guaranteed the seed to be pure alfalfa seed.

. The store' of. the- defendant in Canandaigua where the seed was purchased was under the charge of one Dugan. He stated to the plaintiff that the seed was pure alfalfa seed, “ the best they could. get.” The authority óf Dugan to make this alleged guaranty was denied by the defendant, and the court charged the jury that there was no express warranty, so that phase of the case is eliminated. . .

. The trial judge permitted the jury to find that there was an implied warranty.’ The essence of the charge on this subject is that if -the seed was not in fact' alfalfa seed but was substantially trefoil, then the jury might find an implied warranty. This warranty did not relate to. the quality of .the alfalfa seed. The seed itself was pure, what there was of it, but the trefoil was the predominating crop in the field where the sowing was made.

The yellow blossoms extended all over the ten acres, and several witnesses testified to .the greater proportion of the trefoil over the alfalfa. For aught that appears the alfalfa seed was of the best sort. The trouble is that -the plaintiff purchased alfalfa seed and obtained trefoil and dodder in major quantities. ■

The cases cited by the appellant to the effect that there is no implied warranty of quality, only in exceptional cases, do not apply to the facts presented in this record.. The plaintiff paid for and supposed he was purchasing a valuable seed of a certain kind, and after the crop partially matured he discovered that he had obtained .a worthless kind of seed and a valueless crop had resulted. He did not get what he bought. If the alfalfa seed' liad been defective, not up the standard in quality, there would have been no. implied warranty. A' purchaser innocently buying seed, the kind of which he cannot ascertain by reasonable inspection, may assume in ordinary circumstances that he is getting what he purchased. ■The plaintiff knew nothing of alfalfa-seed. Hé was not capable of making a discriminating inspection of it. Whatever inspection he made was fruitless. The evidence, shows that, the trefoil closely resembles the alfalfa seed. They arp “ very similar in shape and color and size; * * * remarkably -like that of the alfalfa in' general appearance.” Only an expert can distinguish them .is 'the effect of the testimony of Mr. Stewart, the botanist of the State Agricultural Experiment Station at Geneva. The authorities sustain the finding of the jury that there was an implied warranty by the defendant, surviving acceptance, that the seed sold the plaintiff was alfalfa, seed. (Bell v. Mills, 78 App. Div. 42, 46; 68 id. 531, 540; Hawkins v. Pemberton, 51 N. Y.198; White v. Miller, 71 id. 118, 129.)

In the latter case the court (at p. 129) said: “ The .doctrine that a bargain and sale of a chattel of a particular description imports a contract or warranty.that the article sold is of that description is sustained by a great weight of judicial; authority.. *. * * A dealer who sells an article, describing it by the name of an article of commerce, the identity of which is not known to the purchaser; must understand that the latter relies upon the description as a representation by the seller that it is the thing described, and this constitutes a warranty.”

The appellant contends that an improper rule of damages, to its detriment, was adopted on the trial. The (court charged as follows: “ The rule of damages in such cases is that he would be entitled to recover from the person or corporation liable for the damage the fair value of the crop which he lost, or the crop which would have been produced under ordinary circumstances, if the seed had been as represented, this crop being a perennial crop or plant, as stated; that is, one lasting from year to year. You may.also-take into consideration the question of whether or not he should be entitled,. under "such circumstances, to the cost of reseeding, which would be the cost of recultivation and the cost of the new seed sown.”

Alfalfa is called a' perennial plant. It produces for many years without reseeding or cultivation.Three crops may ordinarily be .cut each year.' No drop is expected the year of the seeding. The plaintiff proved by competent witnesses the probable quantity and also the value of the crop which would have been raised the. second year if the seed had been as the plaintiff had the light to expect he had purchased. He then gave proof that the product which lie cut-was of no value. Believing that the prevalence of the trefoil and dodder would destroy the alfalfa he plowed the land, and fitted, it anew and reseeded it with alfalfa. He proved the cost of this-labor and of the seed. These were the two items of damages which were submitted to the jury. . ■

There can be no" doubt that the primary rule of damagés applicable to cases of this kind is the difference in value between the crop actually grown from the. defective seed and that which Would have -been produced had the seed complied with the guaranty. (White v. Miller, 11 N. Y. 118, 132, 133; Van Wyck v. Allen, 69 id. 61, 67.)

One of the exceptions to the charge is that the plaintiff had not proved the value of the crop that was raised.” The plaintiff gave evidence which tended to show the cutting was of no value. The defendant gave no proof upon .that subject. There was, therefore, nothing to deduct in that item from the value of the crop which.would have been raised from unmixed alfalfa séed.. ' '

The defendant further excepted to the rule of damages given to the jury on the- ground that the plaintiff had not “proved the probable value Of the crop that would have been raised that year, if it had been permitted to remain.” ... -

■ The plaintiff, if the-testimony-in his behalf is-to be credited, was confronted with a situation calling for the exercise of judgment. 1 Trefoil was the prevailing plant in- the field. The patches "of dodder were scattered all through it. This was a noxious, rapidly-spreading' weed, concededly destructive to the alfalfa. If, he allowed the crop to mature, for the succeeding year, or more,"he might justly have been charged with neglect'in not ploughing it tip as soon as it was. discovered;' if its continuance resulted in driving out the alfalfa. It was his duty to cut down the damages'as much as possible., .(Bell v. Mills, 68 App. Div. 531, 540; Hamilton v. McPherson, 28 N. Y. 72; Fox v. Everson, 27 Hun, 355; 358.)

" Whether ' the plaintiff exercised good judgment and acted wisely • in plowing under this crop ,'was submitted to the jury. In the course of.his instructions on this point the court said : If he, in the exercise of bad jtidgment, destroyed a crop which was valuable at. that time, -and which would have proven valuable, the defendant ought not to suffer for such an act of wrong judgment.” The verdict settled the question in-plaintiff’s-favor. . If the course'pursued by the plaintiff was the. best possible husbandry for both parties in 'the light of all the circumstances there was no probable value to the crop. According'to the'position .óf-the plaintiff he was not called' upon "to prove its “■probable value,” for >hé acted on the assumption that the damages accruing, from the foreign seeds would exceed any -value which might be derived from the harvest of the alfalfa.' ■*".'■'■ ' ' -

"'. The jury were permitted to include in the damages to the -plaintiff the cost of refitting the ground and for the seed for the .second sowing. These were proper items of damage. ■ The rule is thtis stated in the American and English Encyclopædia of Law (Vol. 30 [2d. ed.], 219) : “ Where' seed is sold with a warranty that it is of a particular kind' and variety, the buyer may, in an action on the warranty, recover the price paid for the seed if it proves worthless, and his expenses in preparing the land-for planting, together with the loss sustained from having his land lie'idle for the year or for such time as the use of it was lost. If the' seed is not true to the warranty and produces a plant which injures the land on which it is planted, the damage to the land thereby caused is also an element of recovery.”

The cost for the first crop was not allowed him. The second seeding was caused by the failure-of the defendant to furnish him proper seed. He was obliged to recultivate his land, in order to put 'it in the same condition as at the first seeding. If he was entitled to recover, the measure of his recovery was the loss he sustained, providing it was the natural proximate result of the defendant’s breach of the contract. If the plaintiff' was justified in plowing under the promiscuous growth of trefoil, dodder and alfalfa, the cost of so doing was properly chargeable to the defendant. It would have .been improvident for the plaintiff.to leave the land plowed without a crop. He is to be compensated for his loss and his land restored, as nearly as practicable, to its former condition, and the expense of the-refitting was one of the elements in the .restoration.

The right of the defendant to have deducted from the loss on the crop the expense of putting it in was not specifically raised on the trial. We doubt the propriety of any such reduction in this case. (Van Wyck v. Allen, 69 N. Y. 61, 67.)

Under the rule of reduction, if the expenses equalled the value of the crop, he would get nothing, although he incurred the expenditures. He should be entitled to the same from the defendant as if he had raised the crop from good seed and sold it at its fair value.

The plaintiff in the spring of 1904 sowed fifteen acres with alfalfa seed. The defendant was able to supply him with only sufficient for 'ten acres. He purchased from one Mather seed for the remaining five acres. It was all in one field,' not separated by any fence. The trefoil blossoms and the dodder extended uniformly all over the fifteen acres. There was no apparent difference in that part of the field seeded from the Mather seed and that purchased of the defendant by the plaintiff. The defendant gave proof that there was trefoil along by the roadside. It showed that a German brought the seed from Germany many years ago, and a little patch of it was sowed about one hundred rods from, the fifteen-acre field. This proof enabled the defendant to claim that the trefoil came, to some extent at least from the roadside and other places. The plaintiff had some of the Mather seed left over. ' He caused it to be examined-and analyzed by an éxpert, who testified to the quantity of trefoil and dodder seed contained in it. ■ This.proof was competent to counteract the effect of the evidence given by the defendant as to the existence of this seed in the neighborhood. The court explained to the jury the limited scope of this testimony, saying: “The evidence of the analysis of another seed was admitted here for the sole,purpose of allowing the jury to infer whether or not the appearance of yellow blossoms of trefoil in this field was due to contamination from highways and from -perhaps other places upon thp farm, or whether or not it was due to the presence of trefoil in the seed sown in the season of 1904.”

After the proof showing the equal prevalence of the trefoil and dodder in the part of the field covered by the Mather seed, it was essential for the plaintiff to explain the reason for that condition. Had no explanation been given the defendant 'might well .have claimed that none could be presented and that the existence of tlie weed in that part-of the field came by the .wind or some similar source. The inference would have been irresistible without the explanation - that - the ten acres on which this seed sold by the defendant was sowed was infected in the same way.

The judgment should be affirmed; with costs. -

• All concurred, except Bobsou, J., who dissented on the ground that the jury ■ were not instructed as to the proper measure of plaintiff’s damages, if any were to be awarded.

Judgment and order- affirmed, with costs.  