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By the Court, Ingraham, J. The plaintiffs acted and sued in their own names as principals. The defendant’s remedy was against them, without reference to whether they •were agents or not.
The counter-claim is for damages to the propeTty sold by the plaintiffs, after the sale and before the delivery. At the time of damage, the cigars had not been weighed or counted. Both of these acts were necessary before title passed, in addition to delivery.' If at this time the cigars had been destroyed by fire, the loss would have fallen on the vendors.
A partial damage, as well as a total damage, is at the risk of vendors, until all that is necessary to complete the contract has been performed. Until they were so counted and weighed, the plaintiffs must bear the damages sustained before that time.
. But the referee erred in his rule of damages. It was for the defendant to show that the damage was done between the sale and delivery. If he was not able to show that, he
*457 failed in proof, and the referee should not have decided in his favor.[New York General Term, May 6, 1861. He also erred in giving the difference in value between the auction price and the value when delivered. He had no right to assume that the whole difference was occasioned by the rain. The defendant must prove the actual damage, without reference to the actual price paid at auction.
It may well be that under the mode in which these cigars were sold, the defendant paid more for them than the witnesses who valued them after the rain estimated them to be worth, but still he was not entitled to such deduction.
Judgment reversed; case referred back to referee, with directions to open the case, allow either party to produce further evidence, and report thereon; costs to abide the event.
Clerke, Gould and Ingraham, Justices.]
Document Info
Judges: Ingraham
Filed Date: 5/6/1861
Precedential Status: Precedential
Modified Date: 11/2/2024