M'Master & Hyde v. Brander

Morphy, J., delivered the opinion of the court. This is an action to recover one thousand three hundred and fifty dollars, the value of a case of goods put on board the ship Harkaway, in New-York, and consigned to the plaintiffs here, but not delivered to them on the arrival of the ship at this port. The defendants, after a general denial of all the allegations tending to make them liable to plaintiffs, aver that the case of goods described in the petition, was duly delivered and has been tendered to the plaintiffs, who have refused to receive it. The plaintiffs obtained, in the inferior court, a judgment; from which defendants prosecute this appeal. The evidence shows, that about a month after the institution of this suit, defendants made to plaintiffs an offer of the case of goods claimed of them, whic.h through some mistake or accident, appears to have been mislaid. The plaintiffs refused to receive the goods, unless under an express reservation of their right of holding the defendants liable in damages for their tardy delivery. These terms not being agreed to by defendants, the goods were not delivered. It is useless to inquire into the plaintiffs’ right to make any such reservation, under the averments of their petition; for the offer itself, independent of this pretension of plaintiffs, was not accompanied with a tender of the costs incurred up to that time, and did not possess the legal requisites of a tender, according to articles 404 and 407, of the Code of Practice. No proof whatever was given below of the value of the goods claimed. We cannot agree with the judge who tried this cause, that this was unnecessary under the pleadings; that defendants, by averring that they had tendered the case of goods described in the petition, thereby admitted and acquiesced in the value affixed to the goods by plaintiffs. The words used by defendants clearly related to the marks and other particulars, by [209] which the box, by them tendered, could be identified with that mentioned in the petition. The price which it pleased plaintiffs to affix to the goods, could not have entered the minds of defendants, when they made this averment. The plaintiffs cannot recover without proving the value of the goods for which they seek to render defendants liable. We think, however, that the justice of the case requires that they should be afforded an opportunity of making such proof, which they thought perhaps unnecessary. It is, therefore, ordered and decreed, that the judgment of the District Court be avoided and reversed, and that this case be remanded for further proceedings; the plaintiffs and appellees paying the costs of this appeal.