The general principle allowing consequential damages naturally resulting from a breach of warranty is not much disputed, but the question of what consequential damages are too remote is not always decided in the same way. Especially where personal injury to a third person is caused by the defect in the warranted article, And the buyer is compelled to pay damages to the person injured, it is disputed whether the buyer can recover these damages from the seller. By the weight of authority he is allowed to do so, and this result seems correct, at least if the defect in the thing sold was of a sort likely to cause the injury which in fa.ct took place.99 The principle does not seem essentially different where the injury is to the buyer himself.
McDonough, 110 Wis. 263, 86 N. W. W); Fisher v. Bertram, 100 HI. App. H2; Union Bank v. Blanchard, 06 N. H. 21, 18 Atl. 90; Halstead Lumber Co. v. Sutton, 46 Kans. 192, 26 he. 444; Punteney-Mitchell Mfg. Co. »• T. G. Northwall Co., 66 Neb. 6, 91 N. W. 863; Leavitt v. Fiberloid Co., IWMaw. 440,82 N. E. 682,16 L. R. A. (N. S.) 866. See also Randall v. Newson,2 Q. B. D. 102; McDonald p. Kansas City Bolt Co., 149 Fed. W), TO C. C. A. 298, 8 L. R. A. (N. S.) 1110; Burr 0. Redhead Co., 62 Neb. 617,72 N. W. 1058.
98 Schurmeier 0. English, 46 Minn. 306, 48 N. W. 1112. Compare this decision with Randall v. Newson, 2 0- B. D. 102, where the seller of a carraige pole was held liable for injury to the buyer's horses caused by the defective condition of the pole. See further as questioning the buyer's right to consequential damages, Herring v. Skaggs, 62 Ala. 180, 34 Am. Bep. 4, 73 Ala. 446; Jones v. Roes, 98 Ala.448,13 8o. 319.
99 In Mowbray v. Merryweather,  2 Q. B. 640, the defendant who had agreed to supply the plaintiff with apparatus for unloading a cargo from a ship belonging to the defendant, which the plaintiff had contracted to unload, furnished a defective chain which broke and injured a person in the plaintiffs, employ. The plaintiff settled his liability with the injured person and was allowed to recover for the money thus paid. Similar decisions are Vogan v. Oulton, 81 L. T. (N. S.) 436; Boston Woven Hose Co. v. Kendall, 178 Mass. 232, 69 N. E. 667, 61 L. R. A. 781, 86 Am. St. Rep. 478. On the other hand, in Rode v. Araey, 116 11I. App. 629, where the buyer's wife was injured owing to breach of warranty of a wagon, it was held that the buyer could not recover for loss of his wife's services, on the ground that the damage was not such as to reasonably have been anticipated.
If there is a difference, the liability of the seller seems clearer; but even in this case some courts hold that the damages are too remote.1 It is beyond the scope of this work to consider the liability of a manufacturer in tort for negligence for injuries caused by defects in goods of his manufacture. It is enough to say that this question is one that must be separately considered.2 What consequential damages are too remote is a question of degree. A few illustrations may be given of cases where the damage was held too remote. Damages due to the diminished value of patents belonging to the buyer and the loss of profits from other contracts owing to defective cement used by the buyer in a building were held too remote.3 Expected profits, unless they very plainly would have been made, are not allowable.4 The expense of erecting a building for machinery bought with a warranty has been held not allowable as part of the damages for breach of the warranty.5
1 In Jones v. Ross, 98 Ala. 448, 13 So. 319, the buyer bought a horse by which he was injured. He was not allowed to recover on the theory that his njury was due to the failure of the horse to comply with the seller's warranty without proof of a scienter. So in Birdsinger v. McCor-mick Machine Co., 183 N. Y. 487, 76 N. E. 611, 3 L. R. A. (N. S.) 1047, a buyer of an agricultural machine was not allowed to recover for injuries which he suffered owing to the defects in the warranted machine. Two judges dissented. This decision seems opposed to two earlier decisions of the Appellate Division of the New York Supreme Court (Bruce v. Fiss Horse Co., 47 N. Y. App. Div. 273, 62 N. Y. S. 96; Wood v. Anthony, 79 N. Y. App. Div. Ill, 79 N. Y. S. 829). It may be that the New York court would hold the injury sufficiently proximate, and the seller liable for it if the warranty were by its terms specifically aimed at the precise defect which caused the injury. On the other hand, the seller in Tyler v. Moody, 111 Ky. 191, 63 S. W. 433, 54 L. R. A. 417, 98 Am. St. Rep. 406, wad held liable for personal injuries suffered by the buyer from the bursting of an acety'ene gas machine which was warranted to be absolutely safe and unable to generate enough gas to explode. See also cases in the preceding note which held the seller liable for injuries to a third person. A fortiori it may be supposed these courts would hold the seller liable for injuries to the buyer.
2 See Watson v. Augusta Brewing Co., 124 Ga. 121, 52 S. £. 152, 110 Am. St. Rep. 157, ILKA. (N. S.) 1178, and note thereto.
3 Ralph v. Rathburn Co., 75 Fed. 971, 39 U. S. App. 297, 21 C. C. A. 584.
4 Glidden v. Pooler, 50 111. App. 36; Love v. Ross, 89 Iowa, 400, 56 N. W. 528. See also Georgia Code, cited in Butler v. Moore, 68 Ga. 780, 45 Am. Rep. 508. In St. Louis Brewing Assn. v. McEnroe, 80 Mo. App. 429, loss of custom owing to the bad quality of beer furnished was not allowed as an element of damage. Compare Swain v. Schieffelin, 134 N. Y. 471, 31 N. E. 1025, 18 L. R. A. 385, where loss of trade caused by selling ice cream in which poisonous matter bought from the defendant had been placed was allowed as an element of damage.
If the buyer's own fault or negligence contributed to the injury, as by his use of goods with knowledge of their defects, he cannot recover consequential damages, since such damages were under the circumstances not proximately due to the breach of warranty.6 It may be that the buyer can best repair the injury caused by the seller's breach by an expenditure which will place him hi a better position than he would have been in had the seller kept his contract - as for instance where a buyer replaces defective machines with new machines of a more efficient character. In such a case the whole expense of replacement cannot be charged against the seller. Loss and gain must be balanced.7