specially concurring.
Generally, I agree with that said in the majority opinion, but I believe that there said must be carried forward a little further.
I agree that the cross-claim stated a claim for relief. There may be some question as to whether or not the claim for relief was proper for a cross-claim — i.e., whether or not it arose out of the transaction or occurrence which was the subject matter of the original action as required by Rule 13(g), W.R.C.P.1 But that question is moot since if the cross-claim were dismissed for that reason, it would have been refiled as a complaint in an original action, and the same issues here presented would have been before the court.
Upon trial of the cross-claim, damages should be limited to the difference between the cost of the goods delivered and that of the goods ordered. The cross-claim is an action for breach of warranty involved in a sale of goods by Drake Building Corporation to Centric Corporation. The measure of damages for such breach is set forth in § 34-21-293, W.S.1977:
“(a) Where the buyer has accepted goods and given notification (subsection (3) of section 2-607 [§ 34-21-270(c) ]) he may recover as damages for any nonconformity of tender the loss resulting in the ordinary course of events from the seller’s breach as determined in any manner which is reasonable.
“(b) The measure of damages for breach of warranty is the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted, unless special circumstances show proximate damages of a different amount.
“(c) In a proper case any incidental and consequential damages under the next section [§ 34-21-294] may also be recovered.”
The “next section,” § 34-21-294, W.S.1977, provides:
“(a) Incidental damages resulting from the seller’s breach include expenses reasonably incurred in inspection, receipt, transportation and care and custody of goods rightfully rejected, any commercially reasonable charges, expenses or commissions in connection with effecting cover and any other reasonable expense incident to the delay or other breach. “(b) Consequential damages resulting from the seller’s breach include:
“(i) Any loss resulting from general or particular requirements and needs of which the seller at the time of contracting had reason to know and which could not reasonably be prevented by cover or otherwise; and “(ii) Injury to person or property proximately resulting from any breach of warranty.”
In addition to the difference between the cost of the goods delivered and that of the *1055goods ordered, the only potential for damages in this case for breach of warranty would be consequential damages. The majority opinion properly notes the requirement for a showing that the damages under the Uniform Commercial Code were “proximately resulting” from the breach of warranty and that they would be limited by the negligence of Centric Corporation. It is also true that where negligence results in a breach of warranty,
“ * * * a cause of action ex contractu and a tortious action premised on negligence, or both, are available to the contractee. [Citations.]” Cline v. Sawyer, Wyo., 600 P.2d 725, 732 (1979).
However, a double recovery should not be allowed. Reynolds v. Tice, Wyo., 595 P.2d 1318 (1979); Western National Bank of Casper v. Harrison, Wyo., 577 P.2d 635 (1978). The negligence aspect of the case was litigated and settled in Kirby Building Systems v. Mineral Explorations Company, Wyo., 704 P.2d 1266 (1985). This negligence aspect resolved those issues involving consequential or other types of damages set out in §§ 34-21-293 and 34-21-294; that is, damages other than those measured by the difference between the value of the goods when accepted and the value the goods would have had if they would have been as warranted. As noted in the majority opinion, the statute relating to contribution among joint tort-feasors did not apply to contract actions.2 The statute was part of the allocation of damages in tort actions — in this case it was pertinent to the negligence claim.
Drake Building Corporation responded to the injured party for its share of the damages resulting from its negligence. Whether this payment was a result of settlement or a satisfaction of judgment is immaterial. It should not have to pay again. The statutory provision against contribution by Drake Building Corporation should not be subject to avoidance by a joinder of a contract claim with the original negligence claim. Centric Corporation should not have two bites of the apple.
The same results from recognizing that the finding of negligence on Centric Corporation’s part (and on the part of other parties, including Drake Building Corporation) in the Kirby case amounts to a factual finding of an intervening cause — i.e., no proximate cause and unforeseeability with respect to the warranty and its breach, either of which would bar Centric Corporation’s recovery for consequential damages on the breach of warranty claim. See §§ 3 and 4 of the extensive Annotation: Buyer’s Incidental and Consequential Damages from Seller’s Breach under UCC § 2-715, 96 A.L.R.3d 299 (1979) in these respects.
In returning the case for trial, I would direct the trial court to limit any damages to the difference between the cost of the goods delivered and the cost of the goods ordered.
. Rule 13(g), W.R.C.P., provides in pertinent part:
"A pleading may state as a cross-claim any claim by one (1) party against a co-party arising out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein or relating to any property that is the subject matter of the original action. * * * ”
. Subsequent to the opinion in Kirby Building Systems v. Mineral Explorations Company, the legislature amended the contribution among joint tort-feasors statute as suggested in my dissent, which was joined in by Justice Brown. Thus, the inequity there noted was removed.