112 N.Y.S. 1078 | N.Y. App. Term. | 1908
The plaintiff brought this action to recover damages for the alleged negligence of the defendant, a common, carrier, in failing to deliver goods consigned for shipment. The answer is, in effect, a general denial. The evidence shows that, on October 26, 1907, the plaintiff shipped, by the defendant express company, to A, D. Matthews’ Sons, Brooklyn, 100 silk waists of the expressed valuation of $340; that the waists were tied up in three bundles, wrapped around in brown wrapping paper, upon which the address and street number of the consignor and consignee were plainly written; and a bill of said waists was affixed to one of the bundles. These bundles were duly tendered to the consignee, on October 28, 1907, but refused, because no bill was attached. The plaintiff was informed of the refusal of the consignee to accept the packages expressed in December, and thereupon made a claim upon the defendant. The goods were found, in the early part of December, 1907, in the defendant’s storage house; and the defendant’s agent permitted the ] laintiff to take out of the packages two waists to be used as samples for the purpose of selling the goods. The waists were subsequently sold, at the best price obtainable, for $250, the depreciation in value being the result of the change in seasons. The trial justice awarded the plaintiff a judgment for $90, the damages being based upon the difference in the value of the waists when delivered in October and the price obtained, or the market value, when sold in December.
There is nothing in the evidence to show that the fact that the goods were of such a character as to depreciate in value because of a change in seasons was within the contemplation of the parties at the time the contract was made. The special damages which the court below awarded to the
The judgment is reversed and a new trial ordered, with costs to appellant to abide the event.
Present: Gildersleeve, MacLean and Seabury, JJ.
Judgment reversed and new trial ordered, with costs to appellant to abide event.