
    Albert W. Porter and Lawrence O. Frickson, Copartners, Etc., Respondents, v. Duval Company, Appellant.
    (Supreme Court, Appellate Term,
    July, 1908.)
    Carriers — Carriage of goods—Actions against carriers — Presumptions and burden of proof — Presumption from failure to deliver.
    Damages — Particular contracts and relations — Liability of bailees, carriers and telegraph companies — Liability of carrier — Liability for delay; Liability for loss or injury to goods.
    In an action against a carrier for the wrongful and negligent loss of goods, the total default of the carrier in delivering or accounting for the goods is prima facie evidence of negligence.
    In such a ease, the measure of damages is the market price of the goods at the time and place of delivery.
    But where the goods, after having been lost, were subsequently found by the carrier and finally delivered to the consignee, the measure of damages is the difference in their value at the time and place they should have been delivered and at the time of their actual delivery.
    Appeal by the defendant from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of New York, first district, borough of Manhattan.
    
      James A. & Richard T. Lynch, for appellant.
    Kneeland, LaFetra & Glaze, for respondents.
   MacLean, T.

This judgment must he reversed for the . adoption of an improper measure of damages.

Some time in 1906 the plaintiffs shipped a case of underwear to one Fraser in Utica by the ¡New York Central & Hudson River Railroad Company which brought it back ¡November 24, 1906, and on the same day notified the plaintiffs of its arrival and, on refusal of acceptance, being over the time limit, stored the case on ¡November thirtieth with the defendant, a warehousing company. Over ten months later, October 9, 1907, the plaintiffs, by their truckman, paid the defendant’s bill (freight, storage and charges), seven dollars and sixty-one cents, and asked for the case. It was not delivered, because it could not be “ located ” in the warehouse. Other calls for the case followed; and there were conversations by telephone in which, according to the testimony, the defendant was told it was important that the case should be located immediately. On October fourteenth the plaintiffs sent the defendant a bill, as if the goods had been bought by them at the original invoice price, ninety-nine dollars. On Monday, ¡November fourth, the case was found and notice of that fact given to the plaintiffs who, however, did not send again. Matters rested thus until January 27, 1908, when this action was begun by the service of a summons which was followed by a complaint alleging “that defendant did not safely keep said goods, but wrongfully and negligently lost the same.” Whether or no the goods were lost within the definition of the learned trial justice, they were found again and might have been had any day within five months before the trial. They seem even to have been physically present in court.

¡Negligence and damages were the issues joined in the pleadings, which were not amended, and whereof the complaint was framed to state a cause of action for breach of contract; and negligence was stated by the plaintiffs’ counsel who expressly disclaim any intention to sue in conversion.

The cases agree that where a bailee of goods, although liable to their owner for their loss only in case of negligence, fails, nevertheless, upon their being demanded, to deliver them or account for such non-delivery, or, to use the language of Sutherland, J. * * * Where ‘ there is a total default in delivering or accounting for the goods ’ this is to be treated as prima facie evidence of negligence.” Claflin v. Meyer, 75 N. Y. 260. That rule was applied herein as if the failure of delivery on demand determined the relations between the parties finally and as if the later production of the goods made no difference; and the court applied the rule obtaining between forwarders and carriers that, on an entire failure to deliver, the carrier is liable for the market price of the .goods at the time and place of delivery. The purpose of the law is to make the owner whole in each case ; and, so as has been held upon a further plea of special damage, the carrier has been constrained to pay further loss caused by its negligence. In the absence of a special plea, where the goods are finally delivered, the measure of damage is the difference in their value at the time and place the goods ought to have been delivered and at the time of their actual delivery. On the plaintiff’s testimony that the value of the goods at the day of the trial was the same as on the day they left for Utica, the judgment should have been, at most, for the interest and costs. Failure to deliver on the day of demand did not make the warehouseman a purchaser of the goods. If, when they were not delivered on demand, the goods were lost, as found by the learned trial justice, they were found before the trial; and the defendant was entitled to credit for the property recovered. Jones v. Morgan, 90 N. Y. 4, 12.

Gildersleeve and Seabury, JJ., concur.

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