The main question in this case is, whether the plaintiff really suffered any damage by reason of the defendant’s failure seasonably to return the burners and parts of burners which it had borrowed; and the answer to this question depended largely upon the use which ' the plaintiff would have been able to make of these articles if they had been-duly returned to him. If they were .covered by a patent, so as to be practically unavailable for sale in his hands, he could have suffered no damage by reason of the action of the defendant in withholding them, save the actual value of the material which entered into their composition.
For this reason, it seems to me that it was clearly erroneous for the court to hold, as it did during the cross-examination of the plaintiff, that it would not permit the defendant to prove what parts of -the lamp were covered by a.patent belonging to the Belgian Lamp Company, or controlled by that corporation. The error was repeated during the direct examination of the secretary and man- ' ager of the defendant.
It is sought to sustain the exclusion of this evidence on the ground that the pleadings presented no issue as to the parts of the lamp which were or were not patented; and, furthermore, that the record does not. disclose the character of the proof which was offered to establish the existence of the patent, and does not show that the' letters patent themselves were produced in "court. -
*433The complaint alleges and the answer admits that the lamp burners in controversy were patented articles. This allegation and admission evidently applied to each burner considered as a whole, but had no reference to the component parts. As to such parts, it was not necessary, that there, should be any averment in the pleadings. The question whether any particular part was patented or not was important solely as bearing upon the measure of. damages, and the evidence was admissible in that view, even though nothing was said on the subject in the pleadings. As to the non-production of. the letters patent, the objection to the proposed proof was not based on that ground; and even if it had been, I think that it was competent to prove, by the cross-examination of the-plaintiff, the .fact, if it were a fact,that he knew the articles to be patented.
I am unable, there fore, .to agree with the learned presiding justice. that no error was committed in excluding the evidence which the defendant sought to introduce for the purpose of showing precisely what parts of the Belgian lamp were patented, and to show-that the Belgian Lamp'Company was the patentee thereof. On the contrary, I think it was an error which requires a reversal of the judgment. . ,
All concurred, except Goodrich, P. J., who read for affirmance.
Cullen, J.:Undoubtedly the plaintiff was entitled to recover the value' of the .articles which he had loaned the defendant, and which had not been promptly returned according to agreement. But he was not satisfied with such a measure of recovery, and insisted upon, proving special damages from the fact that the absence of'these parts prevented him from making up complete burners which had a high value in the market. It seems to me that it was incumbent on the plaintiff himself, before he could establish such a measure of damages, to show by the letters patent that the absence of the loaned parts prevented him from finishing the burners. If there was no patent .on these particular parts, but only on the burners themselves, I can see no. reason why he could not have obtained these parts from .'any other maker, and why his measure of damages was not the- value qf the articles. • ■ ,
*434T¡he judgment should be reversed and a new trial granted, costs to abide the event.
All concurred, except Goodrich, Pi. J., who read for affirmance.,