#### REIGER v. WORTH.

(November 27, 1900.)

Sales — Warranty—Measure of Damages.

The measure of damages for sale of seed rice, which failed to grow as guaranteed, is the amount paid for the seed, the preparation of the soil, the planting of the seed, and, a reasonable rent for the land, less the amount for which the land could have been rented for some other crop.

Civil, ActiON by A. W. Reiger against the Worth Company, heard by Judge E. W. Tirnberlahe and a jury, at Fall Term, 1899, of Brunswick Superior Court. From judgment for plaintiff, the defendant appealed.

E. K. Bryan, for plaintiff.

Eranldin McNeill, for defendant.

MONTGOMERY, J.

This action was brought by the plaintiff to recover damages of defendant on account of a breach of warranty, the form of the action being that formerly known as “case.” The plaintiff bought of the defendant a quantity of rice, which he alleged the defendant represented to be good seed rice, but which was in fact not good seed rice, and which failed to sprout after having been planted, *231although the land was well prepared. The plaintiff further alleged that it was too late, after he discovered that the rice was worthless for seed, and had failed to germinate, to plant for another crop. The jury found these allegations of fact to be true. The plaintiff demanded judgment for the amount paid for the rice, for the amount he expended in preparing the land and in planting the rice, and for the amount of profit which would have been made by the plaintiff upon the anticipated crop had the rice sprouted. The following issues were submitted to the jury: (1) Was the rice sold by the defendant to the plaintiff warranted to be good seed rice? 2) If so, was it such as it was warranted to be? (3) If not, what damage has plaintiff sustained ? The third issue was sub-divided into (1) actual damages, (2) the loss of crop. The third issue was sub-divided, as is stated in the case on appeal, to make a new trial unnecessary in case the Supreme Court should hold damages of crop were too remote and speculative. The jury responded to the first issue, “Xes;” to the second, “No,” and to the third (sub-division 1), “$284,” and to the second sub-division, “$400,” and judgment was rendered against the defendant for both amounts. The appeal of the defendant is from so much of the judgment as is contained in the amount which the jury found in response to the second sub-division of the third issue — for the loss of the crop.

The appeal, however, brings with it the question of the correctness of the submitting by his Honor of the second sub-division of the third issue; of his receiving the testimony of witnesses as to the price of rice in the fall of the year 1898, the time when the anticipated crop would have matured ; and as to the average yield of rice on such land as the plaintiff’s and as the plaintiff had prepared; and of his instruction to the jury on the second sub-division of the third *232issue. That instruction was, after calling attention to tbe evidence and contentions of tbe parties, “that they would allow the plaintiff such a sum as tbey would find from tbe evidence bis net profit on tbe crop would have been if there bad been no breach of the warranty. This is tbe sum left after deducting expenses of preparing for and working said crop, bousing and marketing tbe same.” Tbe matter involved in bis Honor’s instruction to tbe jury is the one to which all of tbe defendant’s other exceptions point, and tbe discussion of tbe charge is, therefore, tbe discussion of them all. Tbe question for consideration and decision, then, is: Can one who sells a farm product to a purchaser, tbe purchaser making known at tbe time of tbe purchase that be wants tbe article for seed with which to plant a crop, and who guarantees that tbe article which be sells is good for tbe purposes of seeding, be made liable in damages in case of tbe entire worthlessness of tbe article for seed purposes, discovered after tbe land has been prepared and tbe seed sown, and too late to plant another crop, for such an amount as a jury might find upon tbe testimony of witnesses to be tbe value of tbe crop which might have been gathered if tbe seed bad been good, and a fair crop raised ? Compensation is to be made to tbe one who sustains an injury in bis person, in bis property, or in bis reputation. This is a general principle underlying tbe law of damages. And there is another general rule to tbe effect that tbe remote consequences of an act, or conjectural consequences, do not make a person liable in damages. Damages can be recovered against one only for tbe consequences of his act when those consequences are proximate, or natural. Great difficulty had been found in all tbe courts in tbe proper application of these general rules to tbe peculiar facts of particular cases, and many of tbe reported cases are in hopeless conflict. The correctness *233of his Honor’s instruction is supported by two English cases. Page v. Pavey, 34 Eng. Com. Law, 628, and Randall v. Raper, 96 Eng. Com. Law, 84. In the first-named case there was a breach of warranty in the sale of wheat sold for seed. The wheat did not grow as it was warranted to do, and was •of no value. The plaintiff, in his action for damages, was allowed to give in evidence of what the value of the crop might have been if it had grown, with the view to make out his •damages. In the other case — Randall v. Raper — the plaintiff had bought from the defendant, with warranty, a quan: titv of seed barley, represented to be Chevalier seed barley, ;and then resold it to another, who sowed it for Chevalier .seed barley; and the same, not being Chevalier seed barley, produced much less and inferior crops of an inferior quality of barley than if .the seed had been Chevalier seed barley. 'The plaintiff obligated himself to compensate his vendee to the •extent of the difference between the value of the crop raised •and the estimated value of what the crop of barley would have been worth if the seed had been as they had been represented to be, and then brought his action-against the defendant for the amount he had paid his vendee. A verdict was had, with leave to the defendant to move to reduce it to the difference in the price between Chevalier seed barley and the •seed barley which was delivered. The rule was refused. Lord Campbell said: “I am clearly of the opinion that in -case the plaintiffs had paid the damages sustained by their vendees, compelled to do so for breach of a warranty similar to that given by the defendant to the plaintiffs, they would have been entitled to recover such damages as special dam•-.ages in this action. It was a probable, a natural, even a necessary consequence of this seed not being Chevalier seed barley that it did not produce the expected quantity of grain. "That is a consequence not depending upon the quality of the *234soil, but one necessarily resulting from tbe contract as to the-quality of tbe seed not being performed.” Erie, J., said-: “Tbe question is, wbat amount of damages is to be given for tbe breach of tbis warranty ? The warranty is that tbe barley sold shall be Chevalier barley. Tbe natural consequence of the breach of such a warranty is that, tbe barley which has-been delivered having been sown, and not being Chevalier-braky, an inferior crop has been produced. This damage naturally results from the breach of the warranty, and the-ordinary measure of it would be the difference in value between the inferior crop produced and that which would have been produced from Chevalier barley.” In the case of Van Wyck v. Allen, 69 N. Y., 61, the facts were that the defendants sold a quantity of cabbage seed to the plaintiff, representing the seed to be “Van Wycklan’s Elat Dutch.” That seed was well known in the market, and had a good reputation. They were sown by the plaintiff, and were totally unproductive of cabbage. It was held in that case that the law-charged the defendant with a warranty that the seed sold and delivered was of the kind represented, and the plaintiff was allowed to show in damages the fair value of the crop-that could have been raised had the seed been as represented. The cases in North Carolina upon this subject are not numerous, and the facts in each are so diverse that it is difficult to group any two under the same head, and they do not seem to be entirely harmonious. Under the head of remote damages, as distinguished from conjectural or uncertain damages, are the cases of Sledge v. Reid, 13 N. C., 440, and Jackson v. Hall, 84 N. C., 489. In the first of these cases the-plaintiff sued the defendant, who was sheriff of Halifax County, for wrongfully taking his mule. He was not allowed to recover for the loss of a part of his crop following-ihe loss of the mule. It was held that such damage was not *235tbe proximate consequence of tbe act complained of, but was tbe secondary result, and therefore too remote. Tbe Court said : “Tbe loss of tbe crop, tbougb following tbe loss of tbe mule, was neither a necessary, nor natural consequence. Tbe plaintiff might buy, or hire another, and finish bis crop; and because be preferred to throw out a part of tbe crop be is not thereby enabled to claim damages for tbe loss as an immediate and necessary consequence of tbe tort.” So that point in these cases was decided against tbe plaintiffs because tbe damage was remote, and not proximate. It was not decided against them because tbe damage was conjectural or uncertain in tbe measure of it. In tbe case of Roberts v. dole, 82 N. C., 292, it appears from tbe case that tbe parties to tbe action agreed to build and keep in repair separate parts of a common division fence, which divided and protected their respective crops. Tbe defendant violated bis agreement, permitting bis part of tbe fence to become rotten, whereupon bogs broke into tbe plaintiff’s field, and injured bis crop. In the trial of tbe ease bis Honor told tbe jury that, if tbe fence was intended by the parties to guard their crops from tbe depredations of stock, tbe plaintiff was entitled to whatever be bad expended in tbe renewing of tbe fence, and to have damages for tbe injury to bis crops, and that tbe measure of bis damage was the difference between what tbe crop undisturbed ordinarily would be, and that which was made, diminished by tbe breaking in of tbe bogs. The Court said: “While tbe Court below very properly declined to restrict tbe plaintiff’s claim to compensation for defendant’s breach of contract, as requested, and correctly directed tbe jury to estimate and allow for the ravages of tbe hogs, tbe rule by which tbe measure of bis injury was to be ascertained was too vague and uncertain to act upon. Tbe value of tbe crop made is capable of definite *236calculation, but what it would have made if it bad not been interfered witb — the other element in the proposition^is and must be purely and wholly conjectural.” No precedents are referred to in that opinion on the point we have been discussing; that is, upon the question of allowing the plaintiffs in actions to give in evidence the value of crops that might have 'been grown and reaped. Boyle v. Reeder, 23 N. C., 607; Foard v. Railroad Co., 53 N. C., 235, and Mace v. Ramsey, 74 N. C., 11, were referred to, but they referred to the loss of the profits of a business, or adventure other than farming or planting. But in the case of Bridgers v. Dill, 97 N. C., 222, the plaintiff was allowed to show that the stock of the defendant were allowed to depredate on his growing crop, the defendant repeatedly pulling down the fencing as the plaintiff would put it up again; and that, as a consequence, his crop was greatly damaged. He said: “They destroyed all but six bales of cotton. The damages were about twenty bales — fifteen anyhow — fifty acres where I never picked out a pound; value, $50 per bale. They damaged me 75 barrels of corn, value $4 per barrel.” The Court, in its instructions as to the damages, told the jury that they should not consider what the plaintiff might have raised upon the land, and that such evidence was excluded. This Court said: “The exception to the evidence of Bridgers objected to by defendant can not be sustained. The trespass was repeated as often as the plaintiff would put up his fence. It was a continued trespass, and the case is unlike that of Roberts v. Cole, 82 N. C., 292, where the damages were properly limited to such a sum as would repair and put the fence in order, and cover the injury done to the crop before the plaintiff knew of the trespass.” It is difficult to distinguish the difference as to the legal principle involved between the last-mentioned case and the case of Roberts v. Cole, *237 supra. However that may be, we have concluded, after mature reflection and a careful study of all the cases to which we were referred in the argument, and which we have found in our investigation, that the principle laid down in Roberts v. Cole applies, and that the plaintiff ought not to have been allowed to recover' the amount estimated as the crop of rice which might have been produced upon the land if the rice had been good seed rice.

The plaintiff did not appeal from the judgment, and, ordinarily, we would have the judgment below reformed, striking out the amount allowed for the loss of the crop, and allowing it to stand for the amount found to be due by the jury under the first sub-division of the third issue ;but, as we think,under all the circumstances of the case, the plaintiff is probably entitled, under a correct rule of estimating the damage he has sustained, to a larger recovery than for the amount expended by him in the preparation and planting of the land, and the value of the rice, we think it but just to him to declare error in the instruction, and send the case back, that it may be tried anew. We think the true rule for the measure of the plaintiff’s damage in this case is the amount which he paid the defendant for the rice, the amount which he expended in the preparation of the soil for the crop and for the planting or sowing of the seed, and because it was too late to plant another crop of rice he ought also to recover a reasonable rent for the land — the 47 acres — for the year 1898, subject to be reduced, however, by such amount as the defendant may be able to show that the plaintiff could have rented the the land for, after it was too late to plant or sow rice, to be' put in other crops than rice. The costs of this appeal to be taxed against the plaintiff.

Error.