#### Marcus C. Beeman, Resp’t, *v.*George A. Bant, App’lt.1

*(Court of Appeals, Second Division,*

*Filed February 25, 1890.)*

1. Warranty—Breach—Measure of damages.

Defendant, with knowledge of the intention of plaintiff to at once make use of it in the freezing and preservation of chickens for the May market following, expressly represented and warranted that for about $500 he would construct a freezer that should keep them in perfect condition for such market. He failed to do so and plaintiff lost many hundred pounds of chickens. The court charged that if plaintiff was entitled to recover, one of the elements of damage would be the difference between the value of the refrigerator as constructed and its value as it would have been if made according to contract. *Held,*no error.

'3. Same.

The court also charged the jury that plaintiff was entitled to recover the value of the chickens lost, less cost of getting them to market, including freight and fees of commission merchant. *Held,*no error.

'3. Same—Contemplated profits.

In so far as the profits contemplated by the parties could be proven, such as the value of chickens in the month of May, etc., they could be considered by the jury.

Appeal from judgment of general term of the supreme court, fourth department, entered upon an order affirming a judgment rendered in favor of the plaintiff at circuit.

*S. M. Goon,*for app’lt; *Charles G. Baldwin,*for resp’t.

1

 Affirming 10 N. Y. State Rep., 325.

Parker, J.

The recovery in this action was for damages claimed to have been sustained because of a breach of an express warranty on the part of the defendant to so construct a freezer *940for the plaintiff, as that chickens could be kept therein in perfect condition.

The jury have found the making of the warranty, its breach and the amount of damages resulting therefrom. The general term have affirmed these findings, and as there is some evidence to support each proposition, we have but to consider the exceptions taken.

The appellant excepted to the charge of the court respecting the measure of damages. Upon the trial he insisted and still urges that the proper measure of damages is the cost of so changing the freezer as to obviate the defect and make it conform to the warranty. And *Monitor Milk Pan Co.*v. Remington, 109 N. Y., 143; 14 N. Y. State Rep., 826 is cited in support of such contention. That decision was not intended to, nor does it modify the rule as recognized and enforced in *Passinger*v. Thorburn, 34 N. Y., 634; *White*v. *Miller,*71 id., 133; Wakeman *v*. *Wheeler & Wilson Mfg. Co.,*101 id., 205; *Reed*v. *McConnell,*id., 276; 1 N. Y. State Rep., 23, and kindred cases.

In that case the argument of the court demonstrates, first, that _ improper evidence was received; and, second, that the finding of the referee was without evidence to support it. Ho other proposition was decided. And the discussion is not applicable to the facts before us.

The plaintiff was largely engaged in preparing poultry for market, which he had either raised or purchased. Before meeting the defendant, he had attempted to keep chickens for the early spring market in a freezer or cooler which he had constructed for the purpose. The attempt was unsuccessful and resulted in a loss.

The jury have found in effect that the defendant, with knowledge of this intention of the plaintiff to at once make use of it in the freezing and preservation of chickens for the May market following, exjDressly represented and warranted that for about $500 he would construct a freezer which should keep them in perfect condition for such market.

That he failed to keep his contract in such respect, resulting in a loss to the plaintiff of many hundred pounds of chickens.

The court charged the jury that if they should find for the plaintiff, he was entitled to recover, as one of the elements of damage, the difference between the value of the refrigerator as constructed and its value as it would have been if made according to contract. The correctness of this instruction does not admit of questioning. Had the defendant made no use of the freezer, such rule would have embraced all the damages recoverable. But he did make use of it, and such use as was contemplated by the contract of the parties. The result was the total loss of hundreds of pounds of chickens.

The fact that the defendant well knew the use to which the freezer was to be immediately put, his representation and warranty that it would keep chickens in perfect condition, burdens him with the damage sustained because of his failure to make good the warranty.

Upon that question the court instructed the jury that the plaint*941iff was entitled to recover the value of the chickens, less cost of getting them to market, including freight and fees of commission merchant.

The question of value was left to the jury, but they were permitted to consider the evidence tending to show that frozen chickens were worth forty cents a pound in the market during the month of May.

Such instruction we consider authorized. The object of the freezer was to preserve chickens for the May market. The expense of construction and trouble, as well as expense of operation, was incurred and undertaken in order to secure the enhanced prices of the month of May. It was the extra profit which the plaintiff was contracting to secure, and in so far as the profits contemplated by the parties can be proven, they may be considered. Gains prevented, as well as losses sustained, are proper elements of damage. *Wakeman*v. *Wheeler & Wilson Mfg. Co.,*101 N. Y., 205.

We have carefully examined the other exceptions to the charge as made, and to the refusals to charge as requested, and also the exceptions taken to the admissibility of testimony, but find no error justifying a reversal.

The insistence of the appellant that the judgment be reversed because against the weight of evidence may have been entitled to some consideration by the general term, but it cannot be regarded here.

The judgment should be affirmed.

All concur, except Eollett, Oh. J., and Yann. J.. not sitting.