The opinion of the court was delivered by: BARD
This is an action by a purchaser of cod liver oil against his vendor to recover damages for breach of warranty.
Plaintiff's evidence showed that it was a manufacturer of and dealer in fertilizer and poultry feeds. On October 30, 1935, plaintiff purchased from the defendant one hundred thirty-gallon drums of cod liver oil imported by defendant from Norway. At the time plaintiff ordered this oil, defendant's salesman orally warranted that it contained 150 units of Vitamin D per gram. This order was confirmed in writing by defendant the following day.
Plaintiff subsequently sold one drum of this oil to one Landes, a poultry farmer, under an expressed warranty that it contained 170 units of Vitamin D per gram. Landes raised his poultry in what is known as "confinement". Under this method the poultry are kept indoors and are not exposed to sunlight, with certain resulting advantages. In order to supply the Vitamin D which is essential to proper calcification of the bones of the poultry and which they normally receive from sunlight, it is necessary to include in their feed cod liver oil or some other source of that vitamin. The formula for feed employed by Landes, based upon recommendations of the Agricultural School of Pennsylvania State College, called for 78 units of Vitamin D per 100 grams of feed. In his use of the cod liver oil purchased from plaintiff Landes in mixing his feed computed the proportion of oil necessary to supply the formula requirement on the assumption that it contained 170 units of Vitamin D per gram as warranted by plaintiff.
After using this mixture for a short period of time, Landes found a substantial decrease in the productivity of his laying hens and evidence of rickets and improper bone calcification in his poultry. He wrote to plaintiff advising it of his findings and requesting a correct report of the Vitamin D content of the cod liver oil it had sold him. Plaintiff replied that the oil was guaranteed to contain a minimum of 170 units of Vitamin D per gram. Landes subsequently wrote to plaintiff advising it that tests indicated that the cod liver oil contained less than 50 units of Vitamin D per gram, and made claim on plaintiff for damages for loss of egg yield and death of a number of his chickens. Plaintiff notified defendant of the Landes complaint and was advised by defendant that it felt that there was nothing wrong with the oil and that "we are willing to stand back of the 150 International units of Vitamin D guarantee."
Thereafter plaintiff instituted the present action against defendant for breach of warranty, seeking to recover as damages the amount of the judgment recovered by Landes against it, the counsel fee it paid for the defense of that action, and its other expenses incurred in the preparation of the defense to that action. In the present action Landes testified as a witness for plaintiff and described the harmful effect on his poultry resulting from the deficiency of Vitamin D in the cod liver oil in question. Plaintiff further produced expert testimony showing the Vitamin D requirements of poultry raised in confinement. The testimony of an expert analyst who had tested a sample of this oil was that it contained less than 50 units of Vitamin D per gram. Plaintiff further produced expert testimony that there would be no appreciable difference with respect to the health of poultry fed by the formula used by Landes if the preparation of cod liver oil was computed on the assumption that it contained 170 units of Vitamin D per gram if it in fact contained 150 units, but that if it in fact contained less than 50 units this difference in Vitamin D content might well have been the cause of the results experienced by Landes. Landes further testified in this action that it was only after his use of the cod liver oil which he had purchased from plaintiff that his poultry developed the ailments of which he complained.
To plaintiff's claim defendant asserted a great many defenses, both factual and legal. The principal factual defenses of the defendant were that the defendant's salesman did not in fact assert that the Vitamin D content of the cod liver oil was 150 units per gram; that even if such assertion had been made, no reliance was placed thereon by plaintiff; and that the alleged deficiency in the cod liver oil was not the cause of the disease and death of Landes' poultry. The principal legal defenses of the defendant were that the parol evidence rule barred any action on the alleged oral warranty; that plaintiff failed to introduce in this case the best evidence of the judgment in the action against it by Landes and accordingly could not recover the amount thereof; that the alleged warranty given by defendant to plaintiff was a different warranty than that given by plaintiff to Landes and hence plaintiff's loss was not the result of defendant's breach of warranty; that the damages claimed by plaintiff were too remote to have been contemplated by the parties and hence were not recoverable; that in no event should plaintiff be entitled to recover counsel fees or expenses of defense; and that there was no proper proof as to the necessity for, or the reasonable value of, such expenses.
On the question of whether the defendant warranted the cod liver oil to contain 150 units of Vitamin D per gram, the evidence of the plaintiff is most convincing. In addition to the testimony that defendant's salesman made such warranty as to the oil as an inducement to the plaintiff to purchase it rather than the product of competitors, the statement by defendant to plaintiff in a letter after the differences with Landes had arisen, that defendant was willing "to stand back of the 150 International units of Vitamin D guarantee", offers strong corroboration of the existence of the express warranty on which this action is based. It also seems clear that the statement as to the Vitamin D content of the oil by defendant's salesman was made with the intention that plaintiff rely thereon, and that plaintiff did in fact rely thereon in ordering the oil from the defendant.
The parol evidence rule relied upon by defendant to preclude recovery on this oral warranty has no application under the facts of this case. The agreement to purchase the oil was oral, as was the warranty. The written instrument which the defendant seeks to set up as a written agreement of sale is merely a confirmation of the order prepared and mailed by the defendant's salesman to plaintiff the day after the sale had been consummated. It did not purport to be a contract, was not signed by the plaintiff, and in no way bars plaintiff's action on the oral warranty made by the defendant.
Defendant's further contention that it cannot be held liable to plaintiff for the damages plaintiff sustained as a result of the Landes action because plaintiff's warranty to Landes was different and greater than defendant's warranty to plaintiff cannot be sustained. It is true that defendant's warranty was that the cod liver oil contained a minimum of 150 units of Vitamin D per gram, whereas plaintiff's warranty to Landes was that it contained a minimum of 170 units per gram. Whether or not this difference was the result of a typographical error, as plaintiff testified, the expert testimony establishes that if the oil had contained 150 units, the deficiency of Vitamin D in the formula used by Landes which would have resulted from his computing his proportion of cod liver oil on the assumption that it contained 170 units would not have been sufficient to cause the sickness and abnormal death rate of his poultry. Accordingly, plaintiff would have sustained no loss if the Vitamin D content of the oil was the 150 units per gram instead of less than 50, and the fact that plaintiff's warranty to Landes was of 170 units per gram does not relieve defendant of the ultimate and direct responsibility for that loss.
Defendant has raised the further question that plaintiff has failed to offer the best evidence of the judgment in the action by Landes against plaintiff, to wit, the record in that action. It appears, however, that in an effort to avoid the expense of having that entire record transcribed, counsel for plaintiff, early in the trial of this case, asked counsel for defendant to admit that such an action was brought on the alleged guarantee and that it resulted in a verdict by Landes against the plaintiff. Defendant's counsel admitted this of record, carefully reserving his right to dispute its relevancy and seeking leave to refer to the contents of any of the papers on file in that proceeding. During the balance of the trial both parties appear to have regarded the matter as if the proceedings of the Landes case were incorporated in this record, and indeed defendant has argued in its brief several matters based upon the different items of claim made by Landes and the extent to which the jury in that case rejected or allowed recovery on those items. Under these circumstances, defendant may not now be heard to raise for the first time that the best evidence of the Landes judgment was not produced.
The remaining questions deal with the damages to which plaintiff is entitled.Defendant contends that no damages are recoverable because they are too remote to have been the natural and foreseeable consequence of its breach of warranty. The settled law is to the contrary. In 5 Williston on Contracts, Revised Edition, § 1394, it is said: "Another kind of case which has given rise to the question of consequential damages is where a buyer who purchases goods with a warranty resells them with a similar warranty and, the goods proving defective, is ...