SUPREME COURT.

#### James Park, Jr., and others, agt. The Morris Axe and Tool Company.

The plaintiffs .were manufacturers of steel, and the defendants -were manufacturers of axes. Plaintiffs wrote to defendants a letter, in which they offer to sell them ten tons of best cast steel, which they would 'warrant equal in quality to any brand of English past steel. Defendants ordered the amount sent to them, which they made into axes, which proved to be of inferior quality, by reason of the inferior quality of the steel.

*Meld,*that the referee was justified in finding a warranty that the steel would make as good axes as the best English steel.

The name of the defendant’s company was 41 Axe and Tool Company.” This was-notice to the plaintiffs of the use to which the steel was to be applied, and the warranty must be held to be that the steel would make either axes or tools of as good quality as the best English.

In this class of warranties the *measure of damages*is the difference between the value of the defective article, made from the defective material furnished, and the value of the article, if made from the material as represented.

In other words, the measure of damages in this case, would be the difference in value between the axes made from the defective steel, and their value if the steel had been equal to the best of English steel.

*General Term, Fourth Department, January,*1871.

*Before*Mullin, P. *J.;*Johnson *and*Talcott, *Justices.*

« The plaintiffs brought suit to recover upon two promissory notes given by defendants for the purchase pricéj in part, of ten tons of axe cast steel. The defendants set up a counter-claim of $3,000 damages, for breach of warranty of the quality of the steel.

The defendants recovered judgment against plaintiffs to the extent of $3,000, less the notes, and plaintiffs appealed to the general term.

The facts are sufficiently stated in the opinion of the court.

*19Bissell, Post and Poor, *attorneys for plaintiffs.*

Hunt and Geeen, *attorneys for*defendants.,

*By the*court, Mullin, P. J.

The plaintiffs were manufacturers of steel at Pittsburgh, in the state of Pennsylvania, and had an office in the city of New York. The defendants were manufacturers of axes at Baldwinsville,, in this state. On the S5th April, 1868, the plaintiffs wrote to defendants a letter, in which they offer to sell them ten tons of best axe cast steel, which they would warrant equal in quality to any brand of English cast steel.

On the 31st July, 1868, the defendants’ reply to the foregoing letter, in which they say, they are going to try and use plaintiffs’ steel—that which they had used, worked very well, and ordering ten tons of certain sizes to be sent, two and a half tons per month, the first installment to be sent ' by the 15th August.

On the 3d August plaintiffs’ acknowledged the receipt of defendants’ letter, and in a postscript to their letter say, we ’ will warrant ours to be equal in quality to Jessup’s or any ■other standard brand.

Ten tons of steel were sent forward to defendants and made into axes, which proved to be of inferior quality, by reason, as the defendants allege, and as the referee finds, of the inferior quality of the steel.

The referee has allowed as damages, the difference in value between the axes made from plaintiffs’ steel, and axes made •from the best quality of English steel.

The plaintiffs insist that this rule of damages is erroneous, and that the defendants were entitled to the difference between the price paid and the market price of the best English steel. The principal question on this appeal is, is the measure of damages adopted by the referee the correct one? If not, the judgment must be reversed and new trial granted.

*Parsons*in his work on *Contracts*(1 Vol., 469), says, if a *20thing be ordered of the manufacturer for a special purpose,, and it be supplied and sold for that purpose, there is an implied warranty that it is fit for that purpose.

The plaintiffs were manufacturers, and the defendants ordered the steel for the purpose of being made into axes. The case is thus brought within the principle, asserted by Parsons, and the referee was justified in finding a warranty that the steel would make as good axes as the best English steel.

The name of the defendants’ company was *u*Axe and Tool Company.” This was notice to the plaintiffs of the use to which the steel was to be applied, and the warranty must be held to be that the steel would make either axes or tools of as good quality as the best English.

The case of *Jones*agt. *Bright*(5 *Bing.,*533), is almost identical in its facts with the one before us. There the-defendant was a manufacturer and vender of copper, and the plaintiff applied to him for copper for sheathing a vessel, the defendant replied he would serve him well. The copper was received by plaintiff, put on his vessel, but proved to be defective by reason of some latent defect, and it was held there was an implied warranty that the article was fit for the purpose for which it was sold.

In this class of warranties the measure of damages is the difference between the value of the defective article made from the defective material furnished, and the value of the article if made from the material as represented. *(Passenger*agt. *Thornburn,*34 *N. Y.,*634; *Milburn*agt. *Belloni,*39 N. *Y.,*53).

In other words the measure of damages in this case, would be the difference in value between the axes made from the defective steel and their value if the steel had been equal to the best English steel. This is the rule applied by the referee.

It is insisted by the plaintiffs’ counsel that the defendants persisted in making axes from plaintiffs’ steel after it was *21ascetained that the steel was of bad quality, and that they •ought not to be allowed damages after such notice.

I agree with the counsel in his proposition, but it does not appear by the evidence that the defendants did persist in making axes after they knew of the bad quality of the steel. The only evidence I find on the subject is that one of the witnesses, who says he tried one of the axes in January or February, 1S69, and found it defective. They commenced making from plaintiffs steel in December, 1868, and made up the whole quantity in four months.

Defects in a single axe, or even 100 axes, would not, it would seem from the evidence, be conclusive evidence that the steel was of bad quality, as it appears that large numbers -made from the best English steel proved defective and were returned.

■ There is no date before us, nor was there any before the referee that enabled him to find that the defendants manufactured axes after notice that the steel was unfit for the purpose.

None of the objections taken by plaintiffs’ counsel to the admission of evidence were well founded; the judgment must be affirmed.