Bates v. Fish Bros. Wagon Co.

of the defective condition, if it sought either to rescind the contract or to hold him for special damages. It could not, after discovering the insufficiency of the plant, continue its use without complaint to the plaintiff, and then claim there was no acceptance on its part. Chambers v. Lancaster, 160 N. Y. 342 , 54 N. E. 707 ; Ellison v. Creed, 34 App. Div. 15 , 53 N. Y. Supp. 1054 ; Brown v. Foster, 108 N. Y. 387 , 15 N. E. 608 . If the inadequacy were not attributable to inherent defects, or to an inefficient system, but could be remedied by the addition of a few coils, or some other slight addition involving no impairment of the plant, then plaintiff should be given an opportunity to supply what was required. The defendant could not accept and enjoy the use of the plant and still repudiate the agreement. The rule of damages for breach of express warranty in cases where there has been an acceptance of the goods warranted adopted in Wisconsin, where the contract was made and performed, as well as in our own state, is that the vendee is entitled to recover the difference between the actual value of the article delivered and what its value would have been had it conformed to the warranty. Boothby v. Scales, 27 Wis. 626 ; Bank of North Collins v. Cary Safe Co., 42 App. Div. 233 , 59 N. Y. Supp. 643 . There is no controversy over this rule of damages, and the referee recognized its existence. He found that the defendant accepted the plant, and that is justified by the testimony, as it continued to use it without complaint to the plaintiff, after the defendant understood fully that the system had failed to give forth adequate heat. This left the defendant to its remedy for damages accruing by reason of the breach of the express warranty. Briggs v. Hilton, 99 N. Y. 517 , 3 N. E. 51 . The referee found specifically that the plaintiff “fully performed said -contract in all respects; said heating apparatus works properly; a circulation of steam is maintained throughout the pipes with a pressure at the tank, as provided by the contract”; that the number of coils “have been substantially supplied”; that the failure to get the required heat is due either to the failure by the defendant to furnish sufficient steam or to lack of coils; that the radiating surface can be augmented by the addition of coils without disturbance to the operation of the plant, and this would bring the heating capacity up to the guaranty, and at a cost of $450. The appellant’s -counsel criticises this finding, in that it is in the alternative, and does not find specifically to what the inadequate heat is chargeable. The criticism technically is a just one, but the defendant cannot complain, for the award of damages on the counterclaim is on the hypothesis that the defective condition was due to the lack of coils. If it is on account of the omission of the defendant to furnish steam, then no damages should be imposed upon the plaintiff. Then the referee finds that the “apparatus is worth $450 less than it would be if it were of ample capacity to heat all the rooms with which it is connected as provided by said contracts,” and under the steam pressure and with the temperature outside covered by the guaranty. These findings involve no serious infringement upon the elementary rule referred to fixing the measure of damages in this class of cases. To paraphrase his report, he, in effect, finds: That the system in

stalled complied with the specifications, in that it was free from inherent fault, and that the work was well done; that, perhaps-through a misconception of the rigor of the climate, or the poor construction of the defendant’s frame buildings, he miscalculated the extent of the radiating surface required to heat them properly. This underestimate did not signify any impairment of the efficiency of the plant itself, but additional coils were required to bring it up to the guaranty, and that addition was a simple matter, the expense of which was readily ascertainable. The situation confronting the referee demanded that he allow the defendant the full measure of damages accruing to it by reason of the breach of the express warranty, and still enable plaintiff to recover what the plant was fairly worth. That rule was fair to the defendant. It recognized his acceptance of the system, but held that the cause of action for failure to comply fully with the guaranty survived such acceptance, and the referee certainly endeavored to mete out that justice to both parties. What it will cost to bring the plant up to the full measure of the plaintiff’s guaranty covers the loss to the defendant, and is, in effect, making the basis of the damages the difference between the actual value and the value if it had corresponded to the guaranty. That measure is no more speculative than the opinions of the witnesses in any case, who fix a value upon an article of this cumbersome kind in actual use. Mr. Savage, an expert on behalf of the defendant, had- testified that it would require an expenditure of $1,500 to $2,000 “for the apparatus to do the work,” while the cost was way below this if the plaintiff’s witnesses are correct in their estimates. In any event, the referee has taken the highest sum given by the witnesses for the plaintiff, and it is not for this court to interfere with Ms deduction, as long as it is supported fairly by the evidence. Competent experts may have a different, and yet proper, way of arriving at the difference between the value of an article actually and if as represented. In this case the plaintiff’s witnesses made the basis of that difference the cost of supplying sufficient coils to bring the system up to the requisite standard. The witnesses on the part of the defendant testified to the value, respectively, of the proposed and of the actual plant. Each was endeavoring to reach the same result, but not by the same methods. That the learned referee saw fit to take the evidence of one class of witnesses in preference to another does no violence to the rule of damages. The proper measure was stated by the referee during the trial, and was perfectly apparent, and he has ■ substantially adhered to it in Ms decision; only he gives the method by which he arrived at it. Nor do we think the 0 defendant was entitled to special damages. It kept the plant in operation, and without information to the plaintiff that it intended to claim substantially a rescission of the contract. Had plaintiff been advised of the difficulty, he could have remedied it; and this is especially true in view of the conclusion of the learned referee that a few coils would have made it comply with the guaranty. Losses and expenditures which are the normal outgrowth of a breach of contract are often allowable, but not where the person incurring the expense has been

remiss in giving to the one responsible for the breach an early opportunity to make reparation, either by remedying the defective article or by money compensation. The judgment should be affirmed, with costs.

The defendant succeeded in part on its counterclaim, and yet the special term, granted an additional allowance, as if the plaintiff had been successful to the full extent of this counterclaim. If the plaintiff sues on an unliquidated demand, claiming to recover $10,000, and recover $1,000, the defendant would not be entitled to an extra allowance of costs on any sum, much less on $10,000.

The order granting the extra allowance should be modified by ■ allowing the same at $13.74, with $10 costs and the disbursements of the appeal from the order to the appellant. All concur.