(90 Hun, 544.)

#### SHERMAN v. BILLINGS, KING & CO.

(Supreme Court, General Term, Third Department.

December 3, 1895.)

Sale—Breach of Warranty—Proof of Damages.

In an action for breach of warranty of materials purchased by plaintiff of defendant, and used in certain work for a third person, plaintiff cannot recover merely on proof of damage to the property of such third person, caused by the use of the defective materials, but he must prove also the damage to himself resulting therefrom. Mayham, P. J., dissenting.

Appeal from circuit court, Warren county.

Action by Charles H. Sherman against Billings, King & Co. for breach of warranty. From a judgment entered on a verdict directed by the court in favor of plaintiff and from an order denying a motion for a new trial, defendant appeals.

Beversed.

Argued before MAYHAM, P. J., and PUTNAM and HEBBIGK, JJ.

P. Q. & F. L. Eckerson (H. A. Howard and C. H. Sturges, of counsel), for appellant.

James H. Bain, for respondent.

*70PUTNAM, J.

The plaintiff, in the spring of 1892, being engaged in the business of finishing and painting wagons and carriages, and having a contract to finish 19 wagons for W. B. Griffin,, or his successor, the Glens Falls Buckboard Company, purchased of defendant two gallons of liquid wood filler, which its agent warranted was a good filler for finishing wagons. Plaintiff, relying upon the representation and warranty of defendant, took the filler, and used it upon the 19 wagons of said Griffin during the spring of 1892. The'filler was not as warranted. When the wagons on which it was used came in contact with water, it scaled off, and left the bare wood exposed. It became necessary to paint the wagons. Evidence was given to the effect that 1.7 of the 19 wagons of Griffin’s were single and 2 of them double. If properly finished, they would have been worth $175 for the singles and $350 for the double ones, and after defendant’s filler was used on them they were not worth half as much. The action was brought by plaintiff to recover damages for the breach of warranty of defendant on the sale of the filler. The complaint alleged the facts above set out, and also that before the commencement of the action the Glens Falls Buckboard Company had brought an action against plaintiff for damages of said wagons in consequence of using said filler; that due notice of the commencement of said action was given to defendant, and also a request for it to defend the same; defendant neglected to pay any attention to said action, and plaintiff did defend the same; that judgment was duly awarded against plaintiff therein for $500 damages and $82.87 costs. Defendant, in its answer, denied any knowledge or information sufficient to form a belief as to the allegations in the complaint in regard to the action of the Glens Falls Buckboard Company, or the rendering of a judgment therein against plaintiff. The trial court held that the plaintiff was entitled to recover as damages the difference in value between the wagons as they were with this filler on them and what their value would have been if the filler had been as recommended. But he reduced the recovery to the amount of the judgment above referred to; that being the amount claimed in the complaint. Although the allegations contained in the complaint in regard to the rendition of a judgment in favor of the Glens Falls Buckboard Company for $582.87 for damages on account of using said filler were denied in the answer, no proof was given on the trial of the recovery of such judgment. In fact the judgment was not referred to by either party until after both had rested. The defendant then moved to dismiss the complaint on the following, among other, grounds:

> “There is a fatal variance between the complaint and the proof, in that the complaint alleges a contract between the plaintiff and the Glens Falls Buckboard Company, in and by which he contracted to do work, and did do work, upon 19 carriages,—the carriages mentioned, I suppose, in the proof; in that they allege a judgment by the Glens Falls Buckboard Company against Mr. Sherman for damages to the 19 wagons, and a notice to the defendant to defend, and a recovery in that action against the plaintiff.”

The trial court denied the motion to dismiss the complaint, and directed judgment in favor of plaintiff for the amount of the judg*71ment set out in the complaint, with interest, to which direction the defendant duly excepted.

The plaintiff having alleged as special damages the recovery of the said judgment against him by the Glens Falls Buckboard Company, and that allegation having been denied in the answer* I thinlc the objection to a recovery interposed by defendant as above set forth should have been sustained. The recovery of the judgment so denied in the answer was not admitted upon the trial by defendant. As we have seen, it was not mentioned until the close of the testimony, when the defendant objected to a recovery by plaintiff on the ground of a fatal variance between the complaint and proof, in that the complaint alleged a judgment by the Glens Falls Buckboard Company against plaintiff. Of course, the variance referred to was the failure of plaintiff to prove the judgment which he had alleged in the complaint as special damages. In the absence of proof of the recovery of the judgment alleged in the complaint, it is difficult to understand on what theory a verdict could be directed for the amount of the said judgment, including $82.87 costs. I infer, however, that the trial judge was of opinion that the plaintiff, notwithstanding the allegation in the complaint in regard to the judgment? was entitled to recover such damages as he proved on the trial he sustained in consequence of the defective filler, irrespective of the judgment, such damages being the difference in the value of Griffin’s wagons treated with the filler in question and their value if properly finished. Such damages, as shown upon the trial, under the ruling of the judge, exceeded the amount of the judgment as alleged in the complaint. In directing a verdict for the amount of the judgment as so alleged, I conclude the judge intended merely to reduce the amount of the damages he held the plaintiff was entitled to recover to the amount claimed in the complaint. It becomes? then, necessary to determine whether the rule of damages adopted by the trial court was correct. Plaintiff had a contract with Griffin to finish 19 wagons, and bought the two gallons of defendant’s filler to use in doing the work. In consequence of the filler not answering the warranty, the wagons of Griffin were damaged. The court held that plaintiff’s damages were the amount of the damage to Griffin’s wagons in consequence of the defective filler. I am unable to see how an injury to Griffin’s wagons damaged plaintiff unless he was compelled to pay Griffin for such injury. Plaintiff’s damages in consequence of defendant’s breach of warranty was the injury he actually suffered in consequence of such breach; for instance, if Griffin had refused to pay plaintiff for his labor in consequence of the defective filler, or he had been compelled to refinish the wagons? or if it had been shown that Griffin obtained a judgment against plaintiff. But mere proof of damage to Griffin’s wagons in consequence of the defective filler was not, as the court held on the trial, sufficient to sustain plaintiff’s claim. It was shown on the trial that the filler was shipped to and paid for by Griffin. The second gallon was ordered, as well as paid for, by him. Under the evidence in this case, the court or jury could have very well found that the filler was used on Griffin’s wagons by his consent. They could have found *72'that under the contract between plaintiff and Griffin, although the iormer was to finish the wagons in a good and workmanlike manner, he was to finish them with defendant’s filler. If the court or jury had so found, as they could have from the evidence, Griffin had no claim against plaintiff for damages; and, so far as the evidence shows, plaintiff suffered no injury in consequence of the breach of ■warranty of defendant. Had the plaintiff shown the recovery of the judgment alleged in the complaint by the Glens Falls Buckboard ■Company (the successor of Griffin), he would have shown that he sustained damages in consequence of the breach of warranty of defendant. I do not think that mere proof of damage to Griffin’s wagons alone was sufficient to justify the judgment.

But if we assume that the rule of damage adopted below was correct, I think the trial court, in excluding evidence offered by defendant, inadvertently fell into an error which requires a reversal of the judgment. Griffin was called as a witness by plaintiff, and, among other things, testified that he did not believe that he got for the wagons much more than half what the wagons would have been worth if properly finished. On the examination of the witness by defendant the following question was asked and ruling made, viz.:

> “Q. At what price did you sell those 19 wagons? (Objected to as immaterial and incompetent, and not affecting the measure of damages. Objection sustained. Defendant duly excepted.) By the Oourt: He may have sold them ;for more or less than they were worth. If he sold them for more than they were worth, that is not yours, it is his.”

1 think this ruling was a material error. The question was proper -on the cross-examination of the witness. Also the price at which the wagons were sold was some evidence of their market value. But the question to be determined was, what was Griffin’s damage In consequence of the defective filler? the trial court holding that the amount of Griffin’s was the measure of plaintiff’s damages. The single wagons, properly finished, would have been worth $175 each, ■and the double ones $350. Suppose Griffin had, in fact, sold all the ■wagons for the prices above specified notwithstanding their defective finish, I should say that in fact he suffered no damage. The trial court, however, held the contrary. He determined that if in fact he sold every wagon for the sum it would have been worth if properly finished, yet his damage was to be measured by the actual value of the wagons as they were with the defective filler on them, and hence he sustained the objection to the question above set out, asked by defendant of Griffin. The rule of damages, in a similar case, has been recently passed upon by the court of appeals in Wait v. Borne, 123 N. Y. 592, 25 N. E. 1053. That was an action to recover for an alleged breach of warranty on the sale of certain oil to "be used in carpets by the plaintiffs, and which it was claimed did not answer the warranty. A portion of the carpets had been sold. It was held:

> “That the proper rule of damages in such a case would generally be the differ<enee between the market value of the carpets as they would have been if the oil used in their manufacture had been equal to the warranty and their value as they were. But, in case the plaintiffs sold any of them for more than their *73market value, after knowledge of the vicious quality of the oil, and under circumstances leaving no liability on their part to the purchasers, the measure of damages would be the difference between the price received and the value of the carpets as they would have been if the oil had been as recommended."

In the case under consideration the wagons had been sold after Griffin knew of the defective character of the filler; and as the defect was, as I judge from the evidence, apparent on inspection of the wagons, it is not to be presumed that Griffin, incurred .liability to purchasers on the sales. Hence defendant should have been allowed, under the above authority, to show7 the price Griffin received for the wagons.

The judgment should be reversed, and a new trial granted; costs to abide the event.

HERRICK, J., concurs. MAYHAM, P. J., dissents.