It appears from the case that the goods were delivered by the defendants to the Rome and Watertown Rail Road Company on the 19th of December, and this action was commenced on the following day. The rights of the parties must, of course, be determined by the state of things existing at the time the action was commenced. The plaintiffs then had a cause of action, but it was not for a destruction, or a conversion of the goods. It was for negligence in not delivering, in a reasonable time, to the Rome and Watertown Rail Road Company. The goods had then been delivered to that company by the defendants, and were on their way to the place of destination. The goods were not lost or destroyed; they were merely delayed, negligently. What then should be the measure of the recovery ? Clearly the loss or damage the plaintiffs have sustained, by reason of the delay, and nothing more. This is not the value of the goods. They were still in existence, and were the goods of the plaintiffs. It is not shown that the goods had lost their value, or any value, by reason of the delay in transportation and delivery. The plaintiffs had been put to trouble and expense, in furnishing other similar goods, in order to prosecute their business; and for such trouble and expense as resulted directly and necessarily from the negligence and delay of the defendants in performing their undertaking, they are responsible in damages. Whether that shall be more or less than the value of the goods, depends upon the evidence. But the valúe of the goods is not the measure of damages, because the .plaintiffs, for aught we know, and as
It seems to be settled law in this state, that a mere delay in delivery, by a carrier, is not a conversion of the property. So that the only claim for damages grows out of the delay.
A new trial should be granted, with costs to abide the event.