Contracts I

Hawkins v. McGee

Supreme Court of New Hampshire, June 4, 1929


Surgeon was to remove skin from plaintiff's chest to graft in place of scar tissue on hand. Defendant said plaintiff would be in hospital up to four days, and then could go to work normally a few days after that. Plaintiff guaranteed a "hundred percent perfect hand." Defendant's hands were not made perfect.

Procedural History:

Verdict for plaintiff on assumpsit in trial by jury. Nonsuit on negligence count.


  • Does saying you guarantee a medical result constitute a warranty even if it's not possible to guarantee?

  • What damages is one liable for in a medical assumpsit?

Plaintiff's Argument:

Defendant should be liable for the damages.

Defendant's Argument:

Statement was only "his expression in strong language that he believed and expected" such a result. No reasonable man would think they were part of any contractual relation.


A warranty is given when a reasonable person would think it has been given to him. Damages are the difference between the promised results and the actual results. Pain of the procedure is expected and hence not included.


Defendant sought out plaintiff and plainly told him that such results were guaranteed. The time required may be assumed to be an estimate, but the condition of the hand was the point of the procedure and would reasonably be assumed to be a warranty.

As damages should be calculated between the promised and actual values, not the actual and initial values, the judge's instructions to the jury were erroneous and a new trial should be given.


A warranty was formed and a new trial should be given to determine damages present between what was promised and what resulted.


Contractual damages are the difference between the result and the warranty.