Mo. Pac. R'y Co. v. Hewett, 2 Wilson 205

Mo. Pac. R'y Co. v. Hewett

2 Wilson 205 | Tex. App. | 1884

Opinion by

Willson, J.

§ 273. Damages; measure of, in action against carrier for goods lost; interest; rental value of goods lost. Hewett brought this suit against the railroad company to recover , $58, the alleged value of certain household goods lost by said company, while in transit on its line of railroad,, and for $50 rental value of a sewing machine, which was among said lost goods. He recovered judgment for $78 *206and costs. The case was tried by the judge without a jury, and he allowed Hewett the full value of the goods lost, $58 and $20 as the rental value of the sewing machine. Held. This suit was not to recover damages for delay in "transporting arjd delivering the goods, but was to recover damages for failing entirely to deliver the goods. If it had been to recover damages for delay, Hewitt would have been entitled, under the evidence, to recover the rental value of his sewing machine during such delay. But in this suit such rental value cannot be estimated as damages. The measure of his damage, in this suit, is the fair market value, at the point of destination, of the goods lost, with legal interest thereon from the date when the goods should have been delivered. [W. & W. Con. Rep. §§ 67, 206, 207, 1254; Fowler v. Davenport, 21 Tex. 627.] Ordinarily, in suits to recovér damages for breach of contract, interest is not recoverable as a part of the damages', but, under the circumstances of this case, the goods being for the personal use of the plaintiff, and not for sale in the market, and the recovery therefor having been delayed at the instanco of the defendant, under promise made to search for and deliver the goods, interest on the value of the same should be estimated as part of the damages.

June 21, 1884.

Reversed and remanded.