J. R. Preston v. Montgomery Ward & Company, Inc

• Court: Vermont Supreme Court
• Writing for the Court: STURTEVANT
• Citation: J. R. Preston v. Montgomery Ward & Company, Inc, 23 A.2d 534, 112 Vt. 295 (Vt. 1942)
• Decision Date: 06 January 1942
• Parties: J. R. PRESTON v. MONTGOMERY WARD & COMPANY, INC

23 A.2d 534

112 Vt. 295

J. R. PRESTON v. MONTGOMERY WARD & COMPANY, INC

Supreme Court of Vermont

January 6, 1942

Special Term at Rutland, November, 1941.

Breach of Warranty.---1. Breach of Warranty in Delivery of Chicks of Wrong Sex.---2. Supplemental Finding May be Without Effect.---3. Discovery of Sex of Chickens.---4. No Error Unless Complained of Below.---5. Damages for Breach of Warranty, P. L. 7994, VI.---6. Damages for Breach of Warranty Value Between Goods as Warranted and as Exist.

1. A breach of warranty of a vendor delivering baby chicks of the wrong sex is a failure to deliver the kind rather than the quality of chicks as warranted.

2. A "supplemental finding" which is a conclusion of law based upon findings of fact previously made as to the truth of which there is no dispute and is inconsistent with those findings is without force or effect.

3. A poultry man can not reasonably be expected to discover that baby chicks are not of the breed and sex warranted until several weeks after delivery to him.

4. A trial court may not be put in error by a point not made below.

5. The measure of damages for a breach of warranty is the loss directly and naturally resulting, in the ordinary course of events, from the breach of warranty, P. L. Sec. 7994, VI.

6. Damages for breach of warranty in the sex and breed of chicks is the difference in value between the chicks as warranted and the chicks as delivered when the purchaser can first reasonably ascertain the breach.

BREACH OF WARRANTY, heard by Chittenden Municipal Court, Aaron H Grout, Judge. Findings of fact were made and judgment entered for the plaintiff. Defendant excepted. The opinion states the case.

Judgment affirmed.

M G. Leary and M. G. Leary, Jr., for defendant.

Leon D. Latham, Jr., for plaintiff.

Present MOULTON, C. J., SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS, JJ.

OPINION

STURTEVANT

In this action the plaintiff seeks to recover damages alleged to have resulted from the defendant's breach of warranty in a contract of sale. Trial was by court, resulting in a judgment for the plaintiff and the case is here upon the defendant's exceptions. The facts found by the court which are material to the questions raised are in substance as follows: In the spring of 1940 the plaintiff entered into a contract with the defendant for the purchase of 350 day old Red Rock chicks at least 90% pullets. The defendant warranted that the chicks to be delivered under this contract would be as specified therein. On April 7, 1941, the defendant delivered 350 chicks to the plaintiff and several weeks later when they had feathered out plaintiff discovered that they were not of the breed bought but were Rock Red chicks. A little later he also discovered that the percentage of pullets was far less than the contract called for.

The findings excepted to by the defendant are as follows:

"When it appeared that the contract warranty had been violated the plaintiff spent a little time in efforts to induce the defendant to make an exchange or in some other way make good on the warranty. Failing to get satisfaction from the defendant he exchanged the chicks he had received from the defendant, which were a mill run as to sex, about fifty-fifty male and female, with one Leonard Poirier for the same number of chickens as he bought of the defendant and of the same breed as the defendant guaranteed to deliver to him and paid Poirier $ 105.00 difference. I find this sum to be a reasonable price to be paid on said exchange for chickens of the age involved at the time of exchange. I find that the plaintiff was not dilatory in doing those things which would put him in the position he would have been in if the defendant had complied with its warranty and that no delay of his has added to the damage he has suffered in the premises.

"I therefore find that the plaintiff is entitled to recover from the defendant one hundred five dollars ($ 105.00) and his costs * * *."

While the defendant saved various exceptions all these, as stated in its brief, are grounded upon its contention that the court did not use the proper rule in determining the amount of damages which the plaintiff was entitled to recover.

The defendant claims that judgment should have been entered for the plaintiff in accordance with its motion in the sum of $ 35.00, which was the difference between the value of the chicks delivered and what would have been their value had they been as warranted as of the date of...