Opinion
February, 1910.
Charles C. Paulding (Wm. Mann, of counsel), for appellant.
Baggott Ryall, for respondent.
Defendant is president of an unincorporated association operating a fast freight line. Plaintiff shipped two cases marked "millinery goods," valued by them at $106.77, to Winona, Minn., on December 10, 1906. The consignee refused to receive them. By some unexplained delay, notice of their return was not mailed to plaintiff until March 19, 1907. The actual contents of the cases were mainly feminine straw hats, not trimmed. No physical injury to the goods was shown, but one of the plaintiffs testified that the delay caused a loss of ninety per cent. in value, owing to change in the prevailing style. The other put the loss at fifty to seventy-five per cent. The court fixed it at about eighty-seven per cent. Defendant had no notice of such danger of depreciation, and this alone is fatal error. Wolfe v. Weir, 61 Misc. 57.
The judgment should be reversed and a new trial ordered, with costs to appellant to abide the event, unless the plaintiff stipulate to reduce the judgment to the sum of ten dollars and costs in the court below, in which event the judgment, as so modified, is affirmed, without costs to either party on this appeal.
Present: SEABURY, GUY and WHITNEY, JJ.
Judgment reversed and new trial ordered, with costs to appellant to abide event, unless plaintiff stipulate to reduce judgment to ten dollars and costs, in which event judgment as so modified, is affirmed, without costs to either party on this appeal.