Opinion
April Term, 1903.
Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.
The defendant is the proprietor of a storage warehouse, and had for safekeeping some crockery and ornaments belonging to the plaintiff. On the return of the articles to the plaintiff the van was negligently upset, and the plaintiff has recovered a judgment for the sum of one hundred and thirteen dollars damages alleged to have been thereby occasioned, less the defendant's charge for storage and cartage. The evidence given on the trial, while disputed and conflicting, would support the result but for the fact that there was no adequate proof to justify the assessment of damages. The two main items of damage allowed by the court are the sum of fifty-five dollars for a bisque figure, and forty dollars for a dinner set of china. The bisque figure originally cost the plaintiff fifty-five dollars, but the evidence of an expert examined in her behalf was to the effect that at the time it was broken by the defendant's carelessness it was worth forty-five dollars, and if restored (the pieces having been saved), would be worth from eight to ten dollars. On this proof it was error to allow the plaintiff the entire original purchase price. The china dinner set, the plaintiff testified, cost her fifty-five dollars, and the evidence of damage was limited to the statement that five or six pieces were broken. It was not shown whether the broken pieces were important or insignificant, to what extent, if any, their broken condition depreciated the rest of the set, what was the market value of the pieces which had been broken, what it would cost to replace them, or the difference in value of the entire set before and after the accident. Under the circumstances the estimate of forty dollars damages was purely speculative and conjectural. The plaintiff receipted in writing for the goods upon their return to her as in good condition. It was, of course, permissible for her to explain the circumstances under which the receipt was given, and to show that the document was not necessarily inconsistent with the existence of her claim. But she could not properly recover damages without proving the amount by satisfactory evidence, such as is clearly within her power and as is required by the settled rules of law. The judgment should be reversed. Goodrich, P.J., Bartlett, Woodward and Jenks, JJ., concurred.