45 N.Y.S. 1085 | N.Y. App. Div. | 1897
Lead Opinion
The only question involved in the determination of this appeal is that of the measure of damages. The defendant, a common carrier, received from the plaintiff a bicycle,, which it undertook to deliver to her at Sussex, in the Province of New Brunswick, Dominion of Canada, at the same time taking from her what was called an invoice, which was a statement as- to the value of the bicycle, signed by the plaintiff, and which was required to import this bicycle into the Dominion of Canada. The bicycle was never delivered to the plaintiff at Sussex. No tender of it was ever made to her there, and it has never been transported by the defendant to Sussex, the
The defendant admits that it failed to perform its contract, to deliver this article at Sussex; that such a failure was the result of its own negligence, and there can be no' doubt -of the defendant’s liability for the damages sustained by the plaintiff in consequence of such negligence. The defendant, however,. claims the right to deliver this bicycle, not to the plaintiff at Sussex, but to the plaintiff wherever it could find her months after.
We agree with, the court below in the conclusion at which it arrived ■—■ that the delivery of this bicycle to the plaintiff, in New York or' Brooklyn, in November, was not a compliance with its contract to deliver the bicycle to the plaintiff at Sussex, New Brunswick, in June. The plaintiff having the right to demand delivery of the bicycle in Sussex, in June, and having made such
The amount of damage awarded to the plaintiff as the value of the bicycle Avas entirely proper under the circumstances. The only evidence as to its value was its cost price, it having heen purchased immediately before the delivery to the defendant, never having been used, having been in the package in which it had been purchased from the manufacture'!-. As this'is the only evidence as to the value, the court was justified in adopting this purchase price as the value • of the article.
We agree, therefore, with the court below that the judgment appealed from was sustained by the evidence, and affirm the. judgment,. with costs.
Rumsey, O’Brien and Parker, JJ., concurred.
Concurrence Opinion
I concur in result, for the reason that this is not a proper case in Ávhich to alloAV the carrier on a trial of the action to tender the ■ goods to the plaintiff, and thus reduce her claim to one for nominal damages only. The ordinary rule in cases of conversion' should be applied here under the special facts of the case.
Judgment affirmed, with costs.