#### Flick vs. Wetherbee.

*Covenant, m lease of farming land, to swpflnj good seed*— Damages *for breach.*

1. The lessor of farming land, who has covenanted to supply the seed, is bound to furnish *good*seed.

2. Where the lessee in such a case objected to the quality of certain seed furnished, and the lessor insisted upon its being used, agreeing, if the seed was defective, to assume the whole risk of a failure of the crop, it was not error, in an action by the lessee for the damages by reason of a partial failure, to instruct the jury that “the measure of damages would be the profit of the crop if the seed had been good.” This must be understood as meaning the difference between the value of a crop from good seed and the value of that actually raised.

3. What the true measure of damages for breach of such a covenant would be, in the absence of any such special agreement to take the whole risk, *d/ubiiatur.*

APPEAL from the Circuit Court for *Dane*County.

This action was commenced before a justice for the balance of an account between the parties; and in the plaintiff’s bill of particulars the largest item charged to defendant was — ■“ Damage from bad seed corn, and from cattle eating what corn did grow — $100.” The answer contained a general denial. The plaintiff cultivated a farm as lessee of the defendant for one year from September 15, 1863; and the indenture of lease put *393in evidence contained a covenant by tbe defendant “ to supply all tbe seed for said farm.” Tbe testimony as to tbe seed corn furnished was as follows: Plaintiff as a witness for bimself said, “ I got my ground ready for planting corn, and sent word to *Mr. Wetherbee*for seed corn. There were sixteen or seventeen acres of corn land. I sent word to him, and did not get it for three days. I then went to bis tenant’s bouse, and we picked out corn. Ferguson was present. I told him I did not think it would grow. I did not like to risk it. He said ‘ I will risk it.’ I planted it. It did not come. After waiting a number of days, I planted other seed on tbe same portion of ground; that came, but it was so young that it did not get ripe. What came of tbe first planting was good corn. If I bad bad good seed in proper time, should have bad corn. Corn around me would average fifty bushels per acre; was worth eight shillings per bushel. Tbe seed lay two weeks after tbe last planting before it came up.” On cross-examination: “ I prepared my ground for corn, and bad it ready to plant about tbe 12th of May. I told Mr. Ferguson to tell defendant I wanted corn. When be came, we assorted it at tbe granary together. Tbe granary was on bis place, about one-fourth of a mile Rom tbe place where I lived. Got about one and a half bushels of seed corn, tbe quantity I wanted. It was not wet weather; was dry immediately after. I went to see if it was sprouting three or four days after planting. I can’t state at what time I planted the second time; it was in June.” David Ferguson, for plaintiff: *“*I was present at tbe selection of seed corn. *F lick*told *Wetherbee*be did not think tbe corn would grow. *Wetherbee*said be would risk it. *F lick*said, ‘Very well, if you will, I will plant it.’ Tbe corn was planted. A little of it grew. Tbe ground was good-and was well worked. His second planting was tbe fifth or sixth of June. Land of about tbe same kind about half a mile off yielded fifty or sixty. bushels of corn per acre.” On cross-examination: “I raised ■¿he corn that was furnished Flick; raised it on *Wether bee’s**394laud; was Ms tenant. I sold it for seed corn." Tbe defendant, as a witness for bimself: “ Tbe seed corn was taken out of tbe corn crib. Ferguson and *Flick*said they would like tbe corn from another part of tbe crib. I may bave said that I would run tire risk.” Tbe defendant also introduced evidence tending to show that tbe failure of tbe plaintiff’s crop in 1864 was probably due in whole or in part to tbe character of tbe season.

Tbe court instructed tbe jury as follows: “If you find that tbe failure of tbe crop was in consequence of tbe poor seed furnished by tbe defendant, then you will determine whether tbe defendant is liable to tbe plaintiff for tbe damage thus occasioned. Tbe lease imposed upon tbe defendant tbe obligation to furnish good seed. * * This imposed upon him. tbe necessity of exercising ordinary care and skill in selecting tbe seed, and if be did so, and tbe seed was apparently good, but failed to grow in consequence of some latent defect, I do not think be would be liable. But if you should find that when tbe seed came to be selected, tbe plaintiff informed tbe defendant that be thought it poor, and objected to taking it, and tbe defendant thereupon insisted upon bis so doing, agreeing to assume tbe risk of a failure of tbe crop, if tbe seed was defective, so far as bimself was concerned and tbe plaintiff also, then I think be would be liable to tbe plaintiff. * * If you find tbe plaintiff entitled to recover on this branch of tbe case, I think Ms measure of damages will be tbe profit of tbe crop if tbe seed bad been good.” Tbe court also refused an instruction asked by tbe defendant, “ that tbe rule of damages was the market price of good seed corn.”

Verdict for tbe plaintiff; which tbe defendant moved to set aside for error in tbe instructions, and insufficiency of evidence, and on other grounds. Tbe motion was denied ; and from a judgment on tbe verdict, defendant appealed.

*J. H.*Carpenter, for appellant,

to tbe point that tbe rule of damages laid down by tbe circuit judge was erroneous, cited 1 *395Grallison, 314; 3 Wheat, 546 ; *Boyd v. Brown,*17 Pick., 453 ; *Blanchard v. My, 21*Wend., 342 ; *Thompson, v.*Shattuch, 2 Met., 615 ; *Hayden v. Cabot,*17 Mass., 169 ; *Donoin v. Potter, 5*Denio, 306 ; *Hargous v. Ablon,*5 Hill, 473 ; *Brayton v. Chase,*3 Wis., 456; *Bradley v. Denton,*id., 557; Sedgw. on Dam., 68-81. Counsel also argued that tbe evidence was wholly insufficient to warrant the verdict

*Welch & Kissam, contra,*

cited *Passenger v. Thorburn,*35 Barb., 23 ; *Griffin v. Colver,*16 N. Y., 493 ; *Hadley v. Baxen-dale,*26 Eng. L. & E., 398 ; 34 E. C. L, 628 ; 40 id., 371.

Cole, J.

There can be no doubt that the lease offered in evidence imposed upon the appellant the duty of furnishing good seed corn ; but what is the proper rule of damages for a breach of the contract in this particular, is a question of considerable difficulty. On the part of the respondent it is claimed, that the tenant is to receive indemnity, and consequently should recover the loss which he has sustained from the defective seed, or in other words, the difference between the crop which was raised anda good crop of corn. On the other hand, it is objected that this rule is inadmissible, since it in effect permits the tenant to recover the anticipated profits of a crop of corn, which are in their nature too contingent and speculative, and too dependent upon the chances of the market and the changes of the weather, to enter into a safe and reasonable estimate of the damages. Nothing, it is said, is more uncertain than profits anticipated from a crop of corn, which is liable to be cut off or injured by drouth, storms or frosts, onto be destroyed by cattle, and even when grown is subject to the fluctuations of markets and chances of trade ; and hence the proper measure of damages is the price of good seed corn and interest, excluding all other damages. I confess I have been in considerable doubt upon the subject, and I am not now clear as to what rule should be adopted. We find the remark frequently made by the authorities, that speculative profits are *396not allowed in tbe estimate of damages for tbe breach of a contract ; yet precisely wbat is meant by tbis language it is a little difficult to say. See Sedgwick on Damages (3d ed.), p. 72. But it is perhaps not now necessary to go into a discussion of tbe general question as to bow far courts have gone in the denial of profits by tbe way of damages, as my brethren are clear that tbis case may be safely disposed of upon its special circumstances. I have some doubt upon that point likewise, but I am disposed to defer to their opinions. There was evidence offered which tended to show that when tbe • seed corn was selected from tbe crib, tbe respondent objected to receiving it, saying that be did not think it would grow, and that tbe appellant said be would take tbe risk of its being good seed. Tbe circuit court, in effect, charged tbe jury that if they found that when tbe seed was selected tbe respondent informed tbe appellant that be thought it poor, and objected to taking it, and tbe appellant insisted upon bis so doing, agreeing to assume tbe risk of tbe failure of a crop if tbe seed was defective, as well for himself as for tbe respondent, then be was liable for wbat tbe proof showed might have been raised if tbe seed corn bad been good. Tbis instruction obviously goes upon tbe assumption that tbe jury might find from tbe evidence that there was a special warranty that tbe seed planted was good, and that if it proved to be defective tbe appellant undertook and agreed to become liable for all tbe loss which might result therefrom — in other words, for tbe loss of tbe crop. Tbe doubt I have upon tbis view of tbe case grows out of tbe weakness of tbe evidence to show such an agreement on the part of tbe appellant. If tbe evidence was sufficient to authorize tbe jury to find that tbe appellant incurred such a liability, then it seems to me it might well be said that be must make good tbe actual loss resulting from tbe defective seed. See *Passenger v. Thorburn, 35*Barb., 17; *Page v. Pavey,*34 Eng. C. L., 628; *Brown v. Edgington,*40 id., 371; 15 Wis., 318.

A still further objection is taken to that portion of tbe charge *397in wbieb tbe jury were told that if they found that the respondent was entitled to recover on this branch of the case, his measure of damages would be the profit of the crop if the seed had been good ; because it makes no allowance for the value of the crop actually grown. We think, however, this portion of the charge relates to the deficiency, and must be so construed. With this interpretation, it is undoubtedly correct.

It results from these views that the judgment of the circuit court must be affirmed.

*By the Court.*— Judgment affirmed.