Vroman v. American Merchants' Union Express Co.

Gilbert, J. The referee held correctly that the title to the goods remained in the plaintiffs. There is no evidence justifying an inference that the property had passed to the buyer. The action being one for negligence, in not delivering the goods within a reasonable time, in other words, for a breach of duty on the part of the defendants, and not for a loss of, or damage done to the goods, the stipulation contained in the receipt taken by the plaintiff, upon the delivery of the goods to the defendant, limiting the amount to be recovered, and the time for commencing the action, do not apply to this case. Westcott v. Fargo, 6 Lans. 319. Moreover, there was a complete waiver of the latter stipulation, arising from the negotiations which took place after the nondelivery of the goods, by the defendants. The case discloses no lack of authority in Higgins to bind the defendants. He was their general agent, held out to the world as such, and it was quite in accordance with the usual functions of such agents to conduct such negotiations. We must, therefore, give his acts a binding effect. The rule of damages was correct. Ordinarily, damages in cases like this are fixed by the market value at the place of delivery. But there are exceptions to the rule, and this case presents one of them. The evidence shows with reasonable certainty that the goods had no market-value in Ohicago. The place of manufacture was, therefore, properly resorted to for the purpose of determining the value of the goods. Sedgw. on Dam. (6th ed.) 334, 426, 583, and notes. The judgment must be affirmed. Judgment affirmed.