
    (50 Misc. Rep. 635)
    D’OLIER v. NEW YORK CENT. & H. R. R. CO.
    (Supreme Court, Appellate Term.
    April 24, 1906.)
    Caeriers — Injury to Shipment — Damages.
    Where 14 eases of yarns were shipped, of which 5 were broken and the yarns therein damaged, and the shipper made no effort to discover the condition of the yarn in the uninjured cases, but sold the whole 14 cases as damaged goods, and there was no other evidence as to the amount of the damage, the shipper is not entitled to recover the difference between the value of the yarns when shipped and the amount received at the sale.
    Appeal from Municipal Court, Borough of Manhattan, Seventh District.
    Action by James D’Olier against the New York Central & Hudson River Railroad Company. From a judgment in favor of plaintiff, defendant appeals.
    Reversed, and new trial granted.
    Argued before SCOTT, P. J., and TRUAX and BISCHOFF, jj.
    Charles C. Paulding, for appellant.
    Ezra P. Prentice, for respondent.
   SCOTT, P. J.

The plaintiff sues for the damage suffered by certain cases of cotton yarns while in course of transportation by defendant. No question is made as to defendant’s liability, the only contest being as to the amount of the loss. The shipment consisted of 14 cases of cotton yarns on cones. Upon arrival at the place of destination, 5 of the cases were broken, and the yarns contained therein damaged. So far as appears from the evidence, the other 9 cases were intact and uninjured, and there is not the .slightest evidence that the yarns contained in them were damaged at all. The plaintiff’s assignors, owners of the yarns, made'not the least effort to ascertain the condition of the yarn in the uninjured cases, but offered the whole shipment for sale as damaged goods, realizing but 10 cents a pound for the lot, whereas the value of the sound yarn before shipment had been 18 cents a pound. For the difference between the two prices the plaintiff has recovered'judgment, the only evidence as to the value of the goods after the injury being the price at which the yarn was sold. In awarding damages as if the whole shipment had been damaged, the court followed the speculative and fanciful testimony of plaintiff’s witnesses, to the effect that the fact that a few cases out of a shipment had been injured would so affect the reputation of the whole shipment in the eyes of the trade that a fair price could not be obtained even for the uninjured merchandise; a proposition which appears to be quite unreasonable. Furthermore, the evidence of selling value is most unsatisfactory. The plaintiff relies upon Parmenter v. Fitzpatrick, 135 N. Y. 190, 31 N. F. 1032, as an authority for relying upon the selling price as some evidence of value. That case is authority for the proposition that under some circumstances proof of the price obtained at a bona fide sale will tend in the direction of proving or establishing a market price, and therefore be some evidence of value. But it is essential that the sale shall be bona fide, and not in any way forced. In the present case the evidence leaves a strong impression upon the mind that the sale was not bona fide in the sense that plaintiff made no effort to realize a good price. On the contrary, the goods were offered in such a manner as to discredit them, and no effort whatever was made to ascertain the extent of the damage, or how much of the shipment was uninjured. The result is that, while only 5 cases out of the 14 were injured at all, and all of the yarns comprised in the shipment, save a very few yards, were actually used by the purchaser, the defendant has been mulcted in damges to an amount considerably greater than the whole value at the point of shipment of the 5 cases'which were damaged. If the plaintiff’s assignors suffered the loss for which they sue, it is because they took no pains to reduce their damages, or to obtain a fair price for so much of their shipment as was uninjured.

Judgment reversed, and new trial granted, with costs to appellant to abide the event.

All concur.  