Opinion
February, 1905.
John Callahan, for appellant.
E. Louis Jacobs, for respondents.
There is no serious dispute in this case, except as to the correct measure of damages. The plaintiffs entrusted to the defendant to be dyed certain ribbons, which were so improperly done as to be of no value to the former. The trial justice gave judgment for the value of the goods, with a condition and direction that they be delivered to the defendant, which has been done. On behalf of the latter it is argued that it was the duty of the plaintiffs to reduce their damages as much as possible (Parsons v. Sutton, 66 N.Y. 92; Wright v. Bank of Metropolis, 110 id. 245; Dillon v. Anderson, 43 id. 237; Roberts v. White, 73 id. 380; 1 Sedg. Dam. (8th ed.), §§ 201, 202) by procuring the goods to be redyed, and that the measure of damages is limited to the cost of such redyeing.
On the other hand, it is sought to support the judgment on the ground that, as the goods were rendered worthless to the plaintiffs, they might abandon them to the use of the defendant and recover the full value in an action in trover for conversion. May v. Georger, 21 Misc. 622; Barrett Dyeing Establishment v. Wharton, 16 W'kly Dig. 500.
The complaint in this case, however, does not show an action brought on the theory of conversion, but for damages for breach of contract. As there was no evidence that the goods were absolutely valueless, but only valueless to the plaintiffs, the damages awarded for the full amount of the original value were excessive.
The judgment, therefore, must be reversed and a new trial ordered, with costs to the appellant to abide the event.
SCOTT and McCALL, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.