at page 136, 144 A. 909, 911, in which the court said: "'One who warrants goods to possess a certain quality is held to an extensive liability for consequential damages for breach of the warranty.' 3 Williston on Contracts, p. 2472; 2 Williston on Sales, p. 1541, § 614; Griffin v. Metal Product Co., 264 Pa. 254, 107 A. 713.'Where goods are sold with a warranty to a dealer it must be assumed that the dealer may resell them with a similar warranty to a subpurchaser. Accordingly if this is done and the subpurchaser recovers damages from the original buyer, the latter has a prima facie right to recover these damages against the seller who originally sold him the goods. And even though the original buyer has not yet been held liable to his subvendee, the amount of his probable liability may be recovered from the original seller.' 3 Williston on Contracts, p. 2416, § 1355; 2 Williston on Sales, p. 1438, § 599a; Buckbee v. P. Hohenadel, Jr., Co. [7 Cir.], 224 F. 14, L.R.A.1916C, 1001, Ann.Cas.1918B, 88; Lissberger v. Kellogg, 78 N.J.L. 85, 73 A. 67; Hubbard Steel Foundry Co. v. Federal Bridge, etc., Co., 169 Wis. 277, 171 N.W. 949."
Where the damages have been liquidated in an action by the subvendee, this amount is prima facie the amount the vendee may recover from the original vendor. Aldridge Motors, Inc., v. Alexander, 217 N.C. 750, 9 S.E.2d 469; Reese v. Miles, 99 Tenn. 398, 41 S.W. 1065. Plaintiff is, therefore, entitled to recover the amount of the Landes judgment and costs which it paid, $990.23.
Plaintiff further seeks to recover the sum of $1,500, representing the counsel fee it paid its attorneys to defend the Landes action after it had requested defendant to come in and defend that case and defendant had declined to do so. Defendant admitted the reasonableness of this fee for the services rendered, but it challenges the right of plaintiff to recover counsel fees as an item of its damages. Where a vendee who has resold goods with a warranty similar to that made by his vendor is subjected to suit by the subvendee for breach of that warranty, he is entitled to be restored to the position he would be in if the vendor had not defaulted. Where he gives notice to the vendor to come in and defend that suit and the vendor fails to do so, the reasonable cost to the vendee of that defense in relief of the ultimate liability of the vendor should be recoverable by him. It is quite true that our jurisprudence does not recognize counsel fees incurred in an action as a recoverable item of damages in that action, and litigants must bear the expense of counsel as an incident of establishing their legal rights. Where, however, as in the case at bar, the defense of an action by a party is undertaken for the protection of the person ultimately liable after he has had notice to undertake the defense but fails to do so, the reasonable costs of that defense should fall on him. Allowance of counsel fee as a proper item of damage in this situation has been recognized by the authorities. In Carleton v. Lombard, Ayres & Co., 19 App. Div. 297, 46 N.Y.S. 120, an action was brought by a vendee against his vendor for damages arising from a sale of oil containing latent defects to a subvendee, with a warranty similar to that made by the vendor. Said the court at page 125 of 46 N.Y.S.: "The only other question is as to the measure of damages. It is well settled that the plaintiffs were entitled to recover an amount sufficient to compensate them for what they had lost in consequence of a breach of their contract by the defendant. That would be an amount that would put the plaintiffs in the same position that they would have been in had the contract been complied with. Now, if this contract had been complied with, this Graham suit would never have been brought, and the plaintiffs would not have been compelled to pay that judgment, and would not have been compelled to defend that lawsuit. What the plaintiffs were entitled to recover, therefore, was the amount of the judgment they had to pay, and their legal expenses in defending that lawsuit; this last becoming an item of damage because of the fact that the defendant had notice of the lawsuit, and did take part in its defense." This decision was affirmed without opinion 162 N.Y. 628, 57 N.E. 1106.
To the same effect, see Marlatt v. Clary & Latimer, 20 Ark. 251; Czarnikow-Rionda Co. v. Federal Sugar Refining Co., 230 App.Div. 206, 243 N.Y.S. 352.
Defendant raises a further objection, however, to the allowance of counsel fee as an item of damage in this case because part of the fee was paid to defend items of Landes' claim for which he failed to recover against plaintiff and plaintiff has made no effort to apportion the fee paid its counsel for defending the entire action.
Landes' total claim was for $3,806.76 and the jury awarded him $810. Defendant contends that if the Lehigh County jury had awarded Landes nothing, the plaintiff could not recover its counsel fee for the defense of that action, because there would have been no breach of warranty on the part of either of the parties to this suit. The defendant, therefore, contends: That the services rendered by counsel in defending the claim in excess of the amount recovered for breach of warranty were furnished in the interest of plaintiff; that because of this, the fee should be apportioned between the parties to this suit, but since there is nothing before the court to enable it to determine such an apportionment, the plaintiff cannot recover anything for counsel fees.
While it is true that if Landes had failed to recover anything the defendant would not be liable to the plaintiff for counsel fees, it is likewise true that if Landes had recovered the full amount of his claim, the defendant, under the authorities, would be liable for the full amount of counsel fees. Viewed in this light, it would seem to be most unjust to penalize the plaintiff and compel him to pay a large portion of the counsel fee in the Lehigh County case simply because its counsel was successful in rseducing by an appreciable sum the amount for which the defendant would ultimately be liable. The real basis of Landes' action was breach of warranty and that was the reason Reichard was compelled to employ counsel to defend the action. The defendant has agreed that $1,500 is a reasonable sum for counsel fees, and I hold that the plaintiff is entitled to recover this sum from the defendant.
The balance of the damages claimed by the plaintiff is the amount of its expenses for preparation of the defense to the Landes action. The claim is for $789.42 for expenses incurred by a man in making two trips to State College and one trip to New York and Canada to obtain witnesses and also in payment of two professors of Pennsylvania State College for professional advice given to the plaintiff in preparation of the trial.
Defendant's objection to these items on the ground that there is nothing in the record that the charges made were fair and reasonable and that the services rendered were necessary is well taken. There seems to be no doubt that they were incurred and that to some extent they were necessary, but plaintiff failed to show that they were the fair and reasonably charges for the services rendered and therefore cannot recover for those items.
Judgment is hereby entered for plaintiff and against the defendant in the sum of $2,490.23.
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