Ela v. French

| Superior Court of New Hampshire | Dec 15, 1840

Gilchrist, J.

There is no evidence in the case on which to charge the defendant upon the first count, for books sold and delivered, nor upon the second count, for money had and received.

The only question in the case arises upon the other counts, which allege a delivery of the books to the defendant, for sale on commission ; a contract by him to cause them to be insured, and their subsequent destruction by fire, without any insurance having been effected upon them. The plaintiff has proved the contract, as alleged in the declaration, and the breach of it by the defendant, in neglecting to effect an insurance upon the books, and their destruction by fire ; and the only question seems to be, whether the plaintiff shall recover the value of the books, as damages for the breach of the contract.

The defendant has offered no evidence to show the course of business, or the custom and usage of merchants in contracts of this kind, if any custom exist. Nor has he shown whether, by the usage of merchants in New-York, a contract to insure generally goods consigned for sale on commission, is understood to impose on the party the duty of causing the goods to be insured at their full value, or for a less amount. We have, then, before us, evidence of a contract to insure, and of a breach of that contract ; and without any thing to explain it, what rule of damages can we adopt ? The loss to the plaintiff was the value of the books ; and we must presume, in the absence of evidence, that if they had been insured, it would have been for their value. This value, then, is the only measure of damages. Probably the insurance offices in the city of New-York have some rule for their guidance in granting policies' upon property of this character, and perhaps they will not insure beyond a certain proportion of the value of such property. But even if this be so, we have no evidence to guide us in ascertaining the rate per cent, upon the value of the books. When we lay aside the value of the books as our guide, we have no more authority to take one sum than another, as the extent of the damages, for there is no custom of which we can judicially take notice.

We must, therefore, consider this as a contract to insure the books at their full value. If the defendant had desired to limit his liability to any particular sum, by proof of any custom explanatory of contracts of this description, it was competent for him to offer such evidence. As this has not been done, there must be

Judgment on the verdict.