I concur in the opinion of Mr. Justice Ingbaham in so far as he holds that there was sufficient evidence to go to the jury upon the question of a breach of the contract alleged in the complaint, but upon the record before us the jury would only have been justified in rendering a verdict for nominal damages. The only evidence bearing upon the question of damages is, that the plaintiff, upon defendant’s failure to deliver the bicycle when repaired, at Portland, purchased a new bicycle for which he paid seventy-nine dollars. The cost of the new bicycle, manifestly, is not the proper- measure of damages for a breach of the contract, and a verdict for that amount based upon such evidence could not be permitted to stand. If it could, then the plaintiff would have the new wheel and his old one by simply paying the cost of the repairs.
But even though the plaintiff was entitled to recover nominal damages, this does not justify us in reversing the judgment-in favor of the defendant and ordering.a new trial. As was said in Rambaut v. Irving National Bank (42 App. Div. 146): “ Unless some substantial right beyond damages is involved, the court will not reverse a judgment against the plaintiff simply for the purpose of enabling him to obtain nominal da’mages, when it is quite clear from the case presented that he would be entitled to no more.” The general rule is that a judgment will not be reversed for the sole purpose of enabling the plaintiff to recover nominal damages. (Stephens v. Wider, 32 N. Y. 351; Throckmorton v. Evening Post Pub. Co., 35 App. Div. 396; Hartmann v. Burtis, 65 id. 481.)
I think the judgment appealed from should be affirmed, with costs.
Laughlin, J., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event.