Stark v. Porter , 27 Ky. 211 ( 1830 )

Chief Justice Robertson,

delivered the opinion of the court..

This is an action on the case, for negligently wetting the tobacco of the defendant in error, whereby its value was diminished.

The plaintiff in error, had undertaken to transport, for the defendant, two hogsheads of tobacco, to Orleans, for compensation. The tobacco was sunk in the river, before it left the county,in which it was put in the boat, and was taken out and left at a warehouse, in that county. It was never taken to Orleans; nor did the plaintiff convert or otherwise dispose of it.

Crittenden for plaintiff.

The defendant did not sue for the non-delivery of the tobacco at Orleans; but only from the injury re-gu|jjng |0 from its submersion.

The circuit court therefore, erred in instructing the jury, that the measure of damages was the value of tobacco, at Orleans, The proper criterion, was the difference in the value of the tobacco, before and after it was wet, and that, not at Orleans, but in the county, in which it was left, and in which it had been put in the boat. This was the injury complained of, and that which was sustained according to the declaration, as it now appears.

Wherefore, the judgment k reversed, and the cause remanded for a new trial.