D. M. Osborne & Co. v. Poket

Mitchell, J. The cause of action set up in the answer by way of counterclaim is a breach of plaintiff’s agreement to put a harvester in first-class order, for the purpose of enabling defendant to cut and bind his grain therewith. The only damage alleged is “loss of crops” by reason of not having the machine in condition to cut and save the same. Defendant bought the machine from the plaintiff, and the agreement referred to was made at the time of the purchase. It was substantially an agreement to do what vendors of such machines are accustomed to do, viz., to set them up and start them in working order. There were no peculiar or exceptional circumstances affecting this agreement. The damages claimed were remote, and not the natural and proximate consequence of the act complained of, and hence not recoverable. The answer, therefore, set up no counterclaim, unless for nominal damages. Hence, the cause of action set up in the complaint being admitted, there was no substantial error on the part of the court in directing a verdict for the plaintiff. Order affirmed.