Enright v. American Belgian Lamp Co.

Hatch, J.:

I concur in the result reached in this ease,' upon the ground that the complaint seeks the recovery of special damage for the loss of profits on account of the defendant’s failure to return the articles which it had borrowed. In this view there was not only an entire failure of proof to show any loss of profits, but there was ■ affirmative proof to show that the plaintiff suffered no loss on that account. He had at all times a large number of lamps on hand which he did not sell. If he did not and could not sell what he had, how could he lose profits upon an addition to that stock ? The more lamps he had on hand, the greater would be the carrying charge, and, instead of enabling him to earn profits, would impose a further loss. There is nothing in the case to show the value of the articles- which were loaned, and consequently no basis upon which a recovery could be had for their valúe, nor is the complaint framed. upon that- theory. There is, therefore, no ground for the recovery Which has been had.

Bartlett, J., concurred; Cullen, J., concurred in the result.

Judgment and order reversed and new trial granted, costs to abide the,event. ■