(z) Bridge v. Wain, 1 Stark. 504.

(zz) Ferris v. Comstock, 3 Conn. 513.

1 On the sale of a cow, warranted free from the foot and month disease, but which had the disease, and the buyer, a farmer, placed the cow with other cows, some of which were infected and died, damages may be recovered for the entire loss, if the seller knew at the time that the buyer was a farmer and would probably place the infected cow with others. Smith v. Green, 1 C. P. D. 92. Where a boiler sold with a warranty exploded, the rental value of the mill, for which the boiler furnished the motive power, during the time it remained idle on account of such explosion, is an element of damages in an action for breach of the warranty. Sinker v. Kidder, 123 Ind. 528. If a person sells for the purpose of being fed to a cow, part of a lot of hay on which he knows white lead to have been spilt, and the cow dies from the effect of the lead, he is liable for her loss, although he carefully endeavored to separate and remove the damaged hay, and thought he had succeeded. French v. Vining, 102 Mass. 132. See also Parker r. Marquis, 64 Mo. 38.

2 The measure of damages for a breach of warranty in the sale of defective cabbage seed was held to be the difference in value between the crop raised from the defective seed and a crop of the kind of seed such as it was represented to be, as would ordinarily have been produced that year. White v. Miller, 78 N. Y. 393. - K.

3 Thus in an action for breach of a warranty that a refrigerator sold to the plaintiff would keep chickens frozen, the plaintiff is entitled to recover not only the difference between the value of such a refrigerator and one which would fulfil the warranty, but also the value of chickens spoiled because of the faulty refrigerator. Beeman v Banta,

7 Whether Expenses mat be included in Damages.

A question sometimes occurs in these cases, and also in many other actions where damages are demanded, as we have already intimated, which cannot always be answered by direct and unquestioned authority. It is, whether the plaintiff may include in his damages the expenses of litigation. Thus, if one sells a horse with warranty, and the buyer is notified by a third party that the horse is his, and requested to deliver it to him, and this the buyer refuses to do, and defends against an action in which this third person succeeds in proving the horse to be his property; and then the buyer resorts to the seller on his warranty, can he now claim from him the expenses of his unsuccessful defence, either on the ground that it was the direct and immediate consequence of the breach of warranty, or that it was for the benefit of the seller?

It is obvious, in the first place, that this question must be affected somewhat by the presence or absence of fraud, or any wilful wrong, on the part of the defendant; for if that comes into the case it would seem to enlarge the discretion of the jury *as to the amount of damages, and also the equity of the plaintiffs claim. But if, supposing no wilful wrong to be alleged or shown, and, therefore, that both parties are equally innocent, if we then say that the plaintiff may always reclaim his expenses of litigation, this would give him the power of subjecting the defendant to the heavy costs of defending against a suit where there was no defence, which the defendant never would have defended, nor the plaintiff, had be not known that he was doing so out of another's purse. But if we say that these expenses shall never be recovered, the plaintiff must then either be justified in abandoning the thing he bought to the first adverse claimant, and the mere fact of the claim be held enough to establish his right to sue on the warranty, which would be absurd, or else he would be bound to maintain at his own cost a title which he had paid for, and which another had warranted.

In truth, it would be impossible to lay down a universal rule; because the question, as it arises in each case, must be determined by the merits and circumstances of that case. But through all of them the principle of compensation must be regarded; and this would lead to the conclusion, that wherever the litigation was entered into by the buyer, not only in good faith, but on reasonable grounds, and it could be viewed as a measure of defence proper for the interests both of buyer and seller, and, perhaps, when due notice of the claim, the action, and the proposed defence were given to the warrantor, there the plaintiff should be allowed the expenses of the defence in his damages, and otherwise, not. For practical purposes, it would be, we think, of great importance for a buyer, threatened with the loss of his purchase by an adverse claimant, to give notice to his seller and warrantor, somewhat on the old principle of voucher. For if the seller did not choose to defend, the buyer might then safely abandon the property, unless he preferred to defend his title on his own account And if the seller took notice and defended the suit, the buyer would either have his title confirmed without costs to himself, or an unquestionable claim on the warranty, (a) And, for the same reasons it would * doubtless be expedient for any party to give notice, who is to look to another for compensation for property taken from him by a third party, on other grounds than those of warranty.

118 N. T. 538. In Thomas v. Dingley, 70 Me. 100, the plaintiff was allowed, as an element of damage in an action for breach of warranty of carriage springs, the expense of removing the springs from carriages in which they had been put and substituting others. See also Fox v. Stockton, £c. Works, 83 Cal. 333: Cochran v Jones, 95 Ga. 678. But in Herring v. Skaggs, 62 Ala. 180, the court refused to carry this principle so far as to allow the recovery of the value of property stolen from a safe which the defendant had warranted burglar proof.