Omaha Coal, Coke & Lime Co. v. Fay.

Fay & Byrne lacks much of being conclusive upon this point, but we think there is sufficient to sustain the verdict. Fay testifies that he made the contract for the lime; that Mr. Hill, an officer of the company, asked him (Fay) if his firm was going to do the plastering on the Merchants' Hotel, and being informed that they were, Hill said they had lime that was far superior to anything on the market, and spoke of its good qualities. Fay said he was timid about experimenting on any new lime, and Hill said that it would be no experiment; that the lime was guaranteed to every man they sold it to, and if plaintiffs bought it they would guarantee it to them; that he had not at that time used any of this lime; that after this conversation with Hill he consulted his partner, and some time later told the officers of the company that if they would guarantee the lime plaintiffs would take it, and they said "all right." It appeared on cross-examination that before work began on the Merchants' Hotel, Fay & Byrne had used some of the lime in question upon another building, and plaintiff in error contends that the conversation narrated by Fay referred to this purchase, and not to the lime purchased for the hotel. Fay explains that he had the first conversation with Hill before buying the lime for the other house but did not complete the purchase until the other house was finished.

Mr. Byrne testifies that he talked with Hill before the purchase, and Hill said the lime would do better work than any in the market, and that he would guarantee it to do as he said. It also appears in evidence that a portion, at least, of the lime used in the hotel was not shipped to Omaha until after the contract was made, and as to this portion, at least, Fay & Byrne had no opportunities for inspection.

Whether this testimony is sufficient to establish an express warranty we need not determine. Where there is no opportunity to inspect the commodity, the rule of caveat

Omaha Coal, Coke & Lime Co. v. Fay.

emptor does not apply. When one contracts to supply an article in which he deals, to be applied to a particular purpose so that the buyer necessarily trusts to the judgment or skill of the vendor, there is an implied warranty that it shall be reasonably fit for the purpose to which it is to be applied, and the better doctrine is that this rule applies to dealers as well as to manufacturers, and not to manufacturers alone, as the plaintiff in error contends. There is certainly sufficient testimony to warrant the jury in finding that Fay & Byrne justifiably relied upon the coal company to furnish lime suitable for the purpose to which they intended to apply it. The second count of the petition. seems to have been framed very carefully in order to apply to this view of the case. There were no exceptions taken to the instructions given by the court upon the question of warranty, and the finding of the jury upon the evidence and these instructions cannot be disturbed.

It is also contended that, conceding the existence of a warranty, as claimed, there is no evidence that the lime failed to comply therewith. Without reviewing the evidence, which is very voluminous upon this subject, we will say that we deem it sufficient to sustain the verdict, although the writer, were he called upon to find the facts in the first instance, would very likely have found them for the plaintiff in error.

The court of its own motion instructed the jury as follows:

"If you find for the plaintiffs you will assess such damages as the evidence convinces you is just, deducting therefrom the amount of $298.87, admitted to be due defendant, with interest at seven per cent per annum from February 6, 1890, up to the 9th day of February, 1891."

At the request of the defendants in error the following instruction was given:

"When two parties have made a contract which one of them has broken, the damages which the other party ought

Omaha Coal, Coke & Lime Co. v. Fay.

to receive in respect to such a breach of contract should be either such as may fairly and reasonably be considered as arising naturally—that is, according to the usual course of things-from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract, as the probable result of the breach of it. And if you find from the evidence in this case that defendant knew the purpose for which the lime sold plaintiffs was to be used, and warranted the same to be good lime, suitable for the purpose for which they knew it was to be used, and you further find from the evidence that the lime in question was not good lime, and was not suitable for the purpose for which defendant knew it was to be used, then your verdict will be for plaintiffs, and you will determine from the evidence what damages plaintiffs have sustained, and allow plaintiffs by your verdict such sum as the evidence shows the damages they have sustained amount to, bearing in mind that plaintiffs are entitled to recover in that event only such damages as may reasonably be supposed to have been contemplated by plaintiffs and defendant at the time the lime in question was sold."

Both of these instructions were excepted to by plaintiff in error, and they are the only instructions given on the measure of damages.

In giving the instruction last quoted the court stated the rule in Hadley v. Baxendale, 9 Ex. Rep. [Eng.], 341. This has been approved in Sycamore Co. v. Sturm, 13 Neb., 210, and is undoubtedly correct as a statement of a general proposition of law. But we do not think it should have been given in this case without further instructions confining the jury to such damages as under the pleadings and evidence would come within the rule. The damages claimed were consequential in their nature, and only such damages of that character could be recovered as were expressly pleaded; that is, the cost of replastering the ceiling and repapering

Omaha Coal, Coke & Lime Co. v. Fay.

the walls. In cases of this character the rule of avoidable consequences applies. The defendants in error could not recover these items of expense if the defects in the lime might, by persons accustomed to the use of such articles, have been discovered before the lime was made into mortar and placed upon the walls. If Fay & Byrne did discover or should have discovered the defect before plastering the walls, they should not have proceeded to use the lime, and they could not hold the plaintiff in error liable for damages consequent upon the use of the lime after such discovery. This rule certainly applies in the case of articles readily purchasable in the market, where the vendee is not by force of circumstances compelled to proceed with the imperfect article delivered.

Furthermore, in cases of this character, where consequential damages are recoverable, the ordinary measure of those damages would be the cost of replacing the defective work with other material of the character and quality which should have been furnished in the first instance—in this case the cost of replastering the walls and ceiling with plaster. Another method was here pursued. The side walls were papered, and it is fairly inferable from the evidence that the cost of papering was less than that of replastering; but the ceilings were replastered with adamant, which is shown by the evidence to be more expensive than plaster. The cost of repairing the damage in this way would be a fair measure of damages, provided the method pursued was a reasonable method, and did not exceed in cost that of replacing the defective work with proper material of like character. These are matters of law which should have been stated to the jury in order that they might ascertain from the evidence whether or not the circumstances existed which would justify the allowance of such damages, and also to give them a definite rule for ascertaining the amount. The instruction given by the court of its own motion was so general that it gave the

Omaha Coal, Coke & Lime Co. v. Fay.

jury no rule of damages whatever; that given at the request of the defendants in error did not restrict the jury to the damages pleaded, and did not state with sufficient certainty the rule for assessing the amount thereof or the conditions of recovery..

The errors above referred to require that the case should be reversed, but as a new trial will be necessary it will be proper to consider some of the other questions presented, which will probably recur upon a further hearing.

At the request of defendants in error the following instruction was given:

"You are instructed that plaintiffs were bound only to use the lime in question in the ordinary and usual manner, and the fact, if it be a fact, that the lime in question, in order to be properly prepared for plastering, required a different process, with respect to the slacking and mixing thereof, from the process and method ordinarily and usually used in slacking and mixing lime for such purpose, and you further find from the evidence that plaintiffs did not know of the peculiar quality of such lime, and could not be reasonably supposed to have possessed such knowledge, and you further find from the evidence that defendant did not communicate to plaintiffs the fact that the lime in question was of a peculiar quality, other and different from ordinary lime, and that its successful use for the purpose of plastering required that it be slacked and mixed in a manner other and different from the method usually employed with ordinary lime, and you further find from the evidence that plaintiffs did slack and mix the lime in question in the usual and ordinary manner, and exercised ordinary care and skill in and about the slacking and mixing thereof, then and in that event plaintiffs would be entitled to recover in this action, even though you should believe from the evidence that the lime in question was good lime, if you further find that plaintiffs sustained damage by reason of the use of such lime in the usual and ordinary