delivered the opinion of the court. The plaintiffs are entitled to recover a partial loss only. Profits are necessarily incidental and subject to the final disposition of the goods on which they are expected to accrue. The plaintiffs in the present case have actually received five-eighths of the goods, and appropriated the proceeds to their own use. Whether they yielded any profit, or sold at a loss, does not appear; and it is not material, since the plaintiffs chose to accept them at London, and take the benefit of the market there. They are, therefore, at most, entitled to an average loss of three-eighths only.
*Let the report of the referees be reduced, and judgment be entered accordingly.(
(a) Old note. See Tom v. Smith, (3 Caines, 245.) Mumford v. Hallett, (1 Johns. Rep. 433.)
(b) See 1 Phil, on Ins. 122-126; 2 id. 226, et seq.; id. 364; and Abbott v. Sebor, infra, vol. 3, p. 39.