
    Annie Mitchell, Respondent, v. Levi C. Weir, as President of The Adams Express Company, Appellant.
    
      Conversion—failure of a carrier to deliver a bicycle in time for its use by a person during her vacation—measure of damages.
    
    Where a common carrier undertakes to deliver, in June, at Sussex, in Canada, a bicycle which the owner, a resident of New York or Brooklyn, has purchased for use during vacation, and has had shipped in the original manufacturer’s package, and receives a so-called invoice from the owner of the bicycle required for its importation into Canada, but fails to deliver it as agreed, and in August, at a time when its delivery would be of no use to the owner, writes her, in reply to a letter stating the loss of the bicycle, that it cannot forward it without an invoice from the shipper, and requesting the execution by the latter of an “ enclosed declaration,” the owner may maintain an action against the carrier as for a conversion and recover as damages, in the absence of other evidence of value, its cost price.
    Appeal by the defendant, Levi C. Weir, as president of The Adams Express Company, by permission, from a judgment of the Appellate Term of the Supreme Court "in favor of the plaintiff, entered in'the office of the clerk of the county of New York on the 3d day of March, 1897, up'on the decision of the court,, rendered upon appeal, affirming a judgment of the District Court of the city of New York.
    
      C. A. de Gersdorff and H. S. Marshall, for the appellant.
    
      H. B. Bradbury, for the respondent.
   Ingraham, J. :

The only question involved in the determination of this appeal is that of the measure of damages. The defendant, a common carrier, received from the plaintiff a bicycle,, which it undertook to deliver to her at Sussex, in the Province of New Brunswick, Dominion of Canada, at the same time taking from her what was called an invoice, which was a statement as- to the value of the bicycle, signed by the plaintiff, and which was required to import this bicycle into the Dominion of Canada. The bicycle was never delivered to the plaintiff at Sussex. No tender of it was ever made to her there, and it has never been transported by the defendant to Sussex, the defendant having entirely failed to comply with its contract. The plaintiff promptly notified the agent of the defendant at Sussex of the shipment of this article, and that it had not been delivered.to her, and she demanded its delivery. No effort appears to have been made by the defendant to comply with its obligations, and later, in July, a letter was written by Mr. Davenport, as representing' the plaintiff, stating the loss of the bicycle and demanding payment of its value; .but- it was not until the seventh day of August, just two months after the delivery of the bicycle to the defendant for transportation, that the defendant seems to have made any effort to comply with its contract. It then wrote a letter from Boston, Mass., to Miss Mitchell at Sussex, New Brunswick, stating that, they had on hand a bicyle addressed to her, but could not forward it without an invoice from the party who shipped it, and requesting her to cause the shipper to fill out “ the enclosed declaration,” in which case it would be shipped to her. The evidence is that this notification to her came so late that the delivery of the article to her at Sussex would be of no use to her at that time; that the object for which she had purchased the bicycle was to use it during her vacation in Canada; that the bicycle itself was of no value to her in New York or Brooklyn, where she resided, and that, in consequence thereof; the bicycle had become valueless to her because of the neglect of the defendant to comply with its contract. . Upon this the court gave the- plaintiff- a judgment for fifty dollars as the value of the bicycle, and it is from that judgment that the defendant appeals.

The defendant admits that it failed to perform its contract, to deliver this article at Sussex; that such a failure was the result of its own negligence, and there can be no' doubt -of the defendant’s liability for the damages sustained by the plaintiff in consequence of such negligence. The defendant, however,. claims the right to deliver this bicycle, not to the plaintiff at Sussex, but to the plaintiff wherever it could find her months after.

We agree with, the court below in the conclusion at which it arrived ■—■ that the delivery of this bicycle to the plaintiff, in New York or' Brooklyn, in November, was not a compliance with its contract to deliver the bicycle to the plaintiff at Sussex, New Brunswick, in June. The plaintiff having the right to demand delivery of the bicycle in Sussex, in June, and having made such demand, which the defendant refused to comply with, she.had a right to insist that there had been a conversion of the property by the defendant, and to maintain an action for such conversion. The plaintiff, having' thus the right to sue for a conversion of the bicycle, commenced this action on the 19th day of November, 1896. At that time, although the defendant had been notified of the plaintiff’s claim, no tender of the bicycle to the plaintiff, or any one on her behalf, had been made, and no effort .appears to have been made by the defendant to perform its obligation to the plaintiff, except the writing of this letter on August seventh. The subsequent tender of the bicycle to the plaintiff would not affect the legal rights of the parties, or take away from this plaintiff a right to sue for a conversion of the bicycle. We think, therefore, that the action was properly brought; that the failure of the defendant to deliver the bicycle in pursuance of its agreement to the plaintiff, at Sussex, New Brunswick, was a conversion of the bicycle, and that the plaintiff was entitled to recover as for a conversion.

The amount of damage awarded to the plaintiff as the value of the bicycle Avas entirely proper under the circumstances. The only evidence as to its value was its cost price, it having heen purchased immediately before the delivery to the defendant, never having been used, having been in the package in which it had been purchased from the manufacture'!-. As this'is the only evidence as to the value, the court was justified in adopting this purchase price as the value • of the article.

We agree, therefore, with the court below that the judgment appealed from was sustained by the evidence, and affirm the. judgment,. with costs.

Rumsey, O’Brien and Parker, JJ., concurred.

Patterson, J. (concurring):

I concur in result, for the reason that this is not a proper case in Ávhich to alloAV the carrier on a trial of the action to tender the ■ goods to the plaintiff, and thus reduce her claim to one for nominal damages only. The ordinary rule in cases of conversion' should be applied here under the special facts of the case.

Judgment affirmed, with costs.  