46 Misc. 259 | N.Y. App. Term. | 1905
The action is not based upon the negligence of defendant, and no act of negligence is shown. The aption is for damages for “ breach of contract,” the alleged breach being a delay of one and one-half days in delivering a trunk full of samples, checked by one of plaintiff’s assignors, who was traveling as a passenger on defendant’s railroad. The damages allowed were $100, which plaintiff’s assignors claimed was the value of the lost time of the member of the firm who was carrying the samples with him on a selling trip. This amount was apparently arrived at by estimating that a Salesman, paid by commission, would have sold $500 worth of goo.ds each day and thereby have earned a commission of ten per cent. The seller in this case, however, was not a sidesman selling on commission, but a member of the firm, and it does not appear that he lost any sale by reason of the delay in the delivery of the trunk that he would otherwise have made. Nor was there any foundation for the award of any damages. The true measure of damage when a carrier, either through negligence or violation of duty, delays the delivery of merchandise or baggage beyond a reasonable time is the difference between the value when delivery should, have been made and the value at the time when delivery is actually made. Sherman v. Hudson R. R. R. Co., 64 N. Y. 254. No such damage was shown or alleged in this case. The damages claimed and allowed by the justice were ex
Judgment reversed and new trial granted, with costs to appellant to abide the event.
MacLean and Davis, JJ., concur.
Judgment reversed and new trial granted, with costs to appellant to abide event.