Shearer v. Park Nursery Co.

Vanclief, C. The defendant being a corporation engaged in the business of raising and selling nursery fruit-trees, the plaintiff, on March 7, 1891, ordered from it five hundred nursery peach-trees of specified varieties, namely, two hundred Susquehanna, two hundred Muir, and one hundred Solway, and thereupon defendant sold and delivered to plaintiff five hundred young trees at the price of twenty cents apiece, representing them to be of the varieties and in the proportions ordered, and so labeled them. The plaintiff did not know, and had no means of ascertaining, whether or not the trees were such as ordered, until after he had planted them and had cultivated them about two years, when they first bore fruit, and therefore relied solely upon the representations of the defendant as to the varieties of the trees. When the trees first bore fruit it appeared that two hundred and sixty-eight of them were of a different and inferior variety from either of those ordered, and were of a kind that plaintiff did not desire, and which, when planted, occupied about two and one-half acres of plaintiff’s land.

The object of this action was to recover damages alleged to have been suffered by plaintiff in consequence of a breach of the warranty that the trees were of the kinds ordered.

The judgment was in favor of plaintiff for three hundred and fifty dollars, from which, and from an order denying his motion for a new trial, the defendant appeals.

The principal point contended for by appellant is that the court did not measure the damages by the proper rule, which they say is that expressed by section 3313 of the Civil Code, as follows:

“ The detriment caused by the breach of the warranty of the quality of personal property is deemed to be the excess, if any, of the value which the property would have had at the time to which the warranty referred, if it had been complied with, over its actual value at that time.”

[418]To what time, in the sense of this section, does a warranty of the quality of personal property refer? Does it refer to the time of completion of the sale by delivery of the property, or to the time of the breach of the warranty, or to the time when the breach is discovered, or with ordinary care and attention might be discovered, by the purchaser? When the quality of the property is apparent, or with ordinary care may be ascertained at the time of delivery, all three of those conditions coexist at that time, as they did in the case of Hughes v. Bray, 60 Cal. 284, in which it was held that a warranty of barley referred to the time of delivery, and that the measure of damages was the difference between the market value of the (inferior) barley delivered and an equal quantity of the quality warranted at the time of delivery; and this, the court said," was in accordance with section 3313 of the Civil Code. And doubtless this was correct on the” facts of that case, since the delivery, the breach of warranty, and presumable notice of such breach, concurred in point of time; and it would have been equally correct to have said in that case that the measure of damages was the difference in values, etc., at the time of the breach of the warranty, or at the time the breach was discovered. But the court did not say, and surely did not intend to be understood as meaning, that all warranties of the class specified in section 3313 of Civil Code refer to the time of delivery of the property, since such a construction would not only be contrary to the common law as administered in the United States and England but would effect rank injustice in a large class of cases, of which the case at bar is an example. (Sutherland on Damages, secs. 673-76; Sedgwick on Damages, secs. 191, 768, and cases cited.) Under such construction the measure of plaintiff’s damages in this action would be merely the difference between the value of the trees delivered and the same number of trees of the kinds ordered at the time of delivery, and before they were replanted by plaintiff. And so it would be in all cases of warranty of seeds.