164 N.W. 74 | S.D. | 1917
On October 13, 1913, plaintiff shipped a carload of potatoes of' the value of $298.46, to-wit, 55 cents a bushel, from Winfred, S. D., to Randolph, Neb., over the defendant’s line as far as- Sioux City, Iowa, and thence over the line of the Chicago, St. Paul, Minneapolis & Omaha Railway Company. The shipment reached Randolph on October 20th. On that day one Larsen the virtual, but not the nominal, consignee inspected the potatoes and refused to accept them for the reason that they were so badly frozen as to' be unfit and unsalable. Plaintiff, the nominal consignee, was immediately advised of that fact, and he declined to have anything further to do with them. On October 24, 1913, the latter carrier transported the car back to Sioux ■City, and a commission merchant sold the potatoes on that day to one Crom of Kingsley, Iowa, for $367.81, or about 67^2 cents a ■bushel. That night the car was consumed by fire. Thereupon the plaintiff brought this action against the defendant for the full value of the potatoes, and secured judgment for $298.46. From the judgment and an order denying a new trial defendant appeals.
“Where the goods are so materially damaged as to destroy their value, the consignee may of course refuse to accept and sue for the full value, since in that event nothing that the consignee might do would lessen the loss and so diminish ’ the carrier’s liability.”
The evidence in this case was conflicting. The Sioux City merchant testified that there was a “trifle appearance of frost,”
The judgment and order appealed from are affirmed.