We concur with his Honor that the defendant was not entitled to recover by way of counterclaim the cost of the house which he had specially built for the use of the machinery. This is not pleaded as special damages, and besides, it is too remote. It is settled by the leading case of Hadley v.Baxendale, 9 Exch., 341, and in many others, that where there is a breach of warranty as to quality, the purchaser (1) may refuse to accept the goods; (2) if purchase money is paid, he may return the goods and sue to recover back the money paid; (3) or he may plead the breach of warranty in diminution of the price. 2 Benjamin on Sales, sec. 1348; 4 Ed. Ledg. Dam., 291.
Special damages for breach of warranty must be specially pleaded, and must, besides, be such as were within the contemplation of the parties as the necessary result of the breach of warranty, and are rarely allowable except in cases of fraud in inducing the contract. Where an action was for breach of warranty of a reaping machine, it was held that the plaintiff could not recover for the time and grain lost in attempting to operate the defective mower. Frohrich v. Gammon, 28 Minn. 476. There are many similar cases in the books, but this illustrates the principle sufficiently without further citation.
The defendant is not entitled to nominal damages for breach of warranty, as by failure to give notice in a reasonable time or pay for the machinery, the plaintiff was driven to his action to recover the property under the terms of the contract.
NO ERROR.
Cited: S. c., 124 N.C. 326; S. c., 129 N.C. 439; Food Co. v.Elliott, 151 N.C. 396, 397.
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