By the Court,
Paine, J.It is evident that the jury in this case found a verdict much larger than the plaintiff was entitled to by any legal rule of damages. But if the excess was clearly ascertainable, and the proper amount of damages might be readily fixed by the application of a settled rule of law to the evidence, perhaps the practice adopted by the court below, of allowing the plaintiff to remit the excess, and then refusing a new trial, would be proper. The practice of remitting where the illegal part is clearly distinguishable from the rest, and may be ascertained by the court without assuming the functions of the jury and substituting its judgment for theirs, is well settled. Thus, where a verdict allows interest where, none is allowed by law, where it exceeds the amount claimed, or in any other case where that which ought not to stand is clearly ascertained, the remittitur may be allowed. But it ought not to be carried so far as to allow the court, when a jury has obviously mistaken the law, or the evidence, and rendered a verdict which ought not to stand, to substitute its own judgment for theirs, and after determining upon the evidence what amount ought to be allowed, allow the plaintiff to remit the excess, and then refuse a new trial. There are authorities that would sustain even this, as Collins vs. Railroad Company, 12 Barb., 492 ; and Clapp vs Railroad Company, 19 id., 461. But we are unable to see* how such a practice can be sustained, in such cases as those *416were, without doing the very thing which they professed not to do; that is allow the court to substitute its own verdict for a wrong verdict of the jury, and on the plaintiff's accepting that, refusing a new trial. The true rule on the subject is stated in Thomas vs. Westnack, 13 Texas, 580 ; and Lambert vs. Craig, 12 Pick., 199. See also George vs. Law et al., 1 Cal., 363.
It is somewhat difficult to see how the court could arrive at the exact amount of damages proper to be allowed in this case, without violating the rule as we have stated it. Because the plaintiff testified that his model was of the value of $3000. It is true his opinion may have been very erroneous, founded as he said it was on the speculative profits to be realized from his patent. But then for the court to determine on the whole evidence what was the true value of the machine, involved the weighing of this evidence and the reduction of it to reasonable limits; and this was the very function of a jury. But without determining whether the court might properly have done this, consistently with the rule above laid down, we think it was mistaken in the rule of damages which it finally allowed. The general rule as to damages for nondelivery of goods by a common carrier, is the value of the goods, with interest from the day when they should have been delivered. Sedgewick on Dam., 355. The court allowed this, and in addition thereto five cents on each hundred pounds weight of the box of machinery per day, after fourteen days from the time of delivery to the carrier, until its arrival in Milwaukee. We think the language of the contract on which this allowance was evidently founded, extend-d no f arther than to the amount of the freight. It provides for the payment of freight at the rate of $1,90 per hundred pounds, and in the same sentence, that there shall be a “ deduction ” allowed of five cents on each hundred pounds for every day’s delay after fourteen. The word “ deduction ” *417obviously limits the effect of this agreement to the allowance of an abatement of the freight, because from that it was to be deducted. And when the whole of it had been deducted the stipulation was executed. This clause was .obviously intended to provide for a delay of a temporary character, supposing the contract to be performed in every other respect, except in point of time. And it clearly was not intended as provision for stipulated damages in case of an entire nonperformance, so that the employer had to resort to his remedy against the carrier for the whole value of the property. To consider it thus as a continuing agreement, would lead to great injustice. If the carrier by any accident or neglect had destroyed the property so as to render himself liable, the owner might wait as long as the- statute of limitation would ■ allow, and then sue and recover the whole value and interest, and also the amount stipulated to be paid for delay. Such a result was not contemplated by the parties in making this provision. It was merely an agreement to reduce the charges so much for delay. But if the carrier failed entirely, then the ordinary rule of damages was applicable.
We think also that the judge erred in instructing the jury that under the pleadings in this case the plaintiff might recover notwithstanding the article was transported and delivered according to the contract, provided it was so injured, before its delivery as to be entirely unfit for the purpose for which it was intended. That the plaintiff would have a right of action for such injury is clear. But it is an entirely distinct ground of recovery from that of non-delivery. And here the plaintiff has sued for the latter only. He avers that the carriers did not transport and did not deliver the article according to the contract. If they could prove that they did, that wquld be an answer to the complaint. And certainly the plaintiff ought not then to be allowed to prove that notwithstanding they had delivered it as they agreed, they had *418first damaged it and so recover for that. He had not notified them to defend against any such allegation, and they ought not to be presumed ready to defend against it, without notice. Suppose th§ carrier had brought the article to Milwaukee within fourteen days after its receipt and had delivered it to the plaintiff, and he had afterwards brought this action alleging simply a non-delivery. On the proof of a delivery, could he then go into proof of damages to the machine and recover on that? Clearly not. And he could no more do it here, if a delivery to the Milwaukee and Mississippi Railroad Co. was a delivery according to the contract, under the custom, as thig part of the charge assumed.
We apprehend that the only question in issue in this case was whether the model had been transported and delivered according to the contract, No time having been fixed within which it was to be delivered, the carrier was bound to deliver it within a reasonable time. Angelí on Carriers, § 283, 284. And there can be no doubt that here it was not so delivered. It was sent from Chicago to St. Paul, and did not arrive in Milwaukee for more than a year after it was delivered to the carrier. This was not within a reasonable time, and the plaintiff had a clear right of action for its non-delivery. And although under the custom the delivery to the Milwaukee and Mississippi R. R. Co. would have been a good delivery if made in time, yet after a right of action has accrued for nondelivery within a reasonable time, we do not think the Milwaukee and Mississippi Company could waive the owner’s right by an accepatance of the goods afterwards. Yet he might waive it himself. And here the evidence is that he demanded the article of the defendants in Milwaukee in August, 1858. This was waiving his right to hold them responsible for the value of the goods for non-delivery within the time, and still insisting on a delivery by them. If therefore they had then delivered, or if they had already deliver*419ed as the proof shows, this would preclude the plaintiff from recovering the value for the mere non-delivery.
We think therefore that the only question which the court under the pleadings could properly have submitted to the jury would have been whether the article was delivered at Milwaukee within a reasonable time, and that it would have been bound to instruct them that, as a matter of law it was not, there being no dispute in the evidence as to the facts; but that it should also have instructed them, that if after they were in fact delivered at Milwaukee, the plaintiff still demanded them, and insisted on obtaining the goods, that was a waiver of his right to recover their value, for mere non-delivery at the time. He would still have had the right to an abatement of the freight according to the contract, and perhaps to any other direct immediate damage occasioned by the delay, but not to the value of the article. He would also have his action for any damage done to the machine, but if he relied on that he should allege it.
We do not deem it necessary to pass upon the other questions in the case, but for these reasons, the judgment must be reversed, and the cause remanded for a new trial.