
    L. Elkin & Co. v. New York & New Orleans Steamship Company.
    When goods shipped on freight are damaged by water, so as to be valueless and unsalable, the shipper is not bound to sond them to auction to be sold, as a prerequisite to his right of action.
    Either party has a right to require, in such case, a sale by auction, and the expenses will form part of the costs.
    from the Fourth District Court of Now Orleans, Price, J.
    
    
      Hunt & Denagre, for plaintiff. Singleton <& Clack, for defendants.
   Buchanan, J.

The plaintiffs had judgment in the District Court for the value of goods shipped on board the defendants’ vessel, on freight, and which were damaged by water, as testified by several witnesses, to such an extent as to render them entirely valueless. .

Defendants appeal from the judgment, and rely upon the case of Henderson & Gaines v. Ship Maid of Orleans, 12th An. 352; in which case plaintiffs were nonsuited, because they had not ascertained, by an auction sale the difference between the invoice price of the goods shipped, and their value as delivered. The distinction to be made between the case cited and the present is, that in the former, the goods were proved to have some value (say 30 or 40 per cent, of the invoice price) at the port of delivery; whereas, in the latter, the goods are proved to have been culled over, and the suit is instituted only for that portion which the witnesses prove to be entirely valueless and unsalable. In such a case, it seems unreasonable to require of plaintiffs the useless expense of sending the goods to auction, and advertising them for sale, as a prerequisite to the right of action. As we said in Greenwood v. Cooper, 10th An. 797, either party had the right to require a sale by auction; and upon an application by defendants, such an order might have been made, and the expenses would have formed part of the costs. But no such application was made in the court below. The offer of defendants’ clerk, of twenty-five cents a piece for the damaged window shades, “ to paper his house with,” does not appear to us serious; and cannot be viewed as contradicting the testimony of plaintiffs’ witnesses.

Judgment affirmed, with costs.  