action on the notes, where the pledgee has permitted them to become barred by limitations. Nor can a counterclaim for damages to property while in the possession of warehouseman be defeated, in an action for a balance due for advances to the defendant on account of a purchase of the property, on the ground of the joint interest of others in the property, where such warehouseman dealt with the defendant solely and individually in making the advances and accounting for the proceeds of the property sold." Again, the indebtedness of a guest can be availed of as a counterclaim in a suit against an innkeeper for the loss of the guest's property. And the pledgee may when sued for his debt, avail himself of a counterclaim for damages for the sale of collaterals to a third person, who, without notice that he holds them as the pledgee's agent, transfers them beyond the pledgor's control; nor is it necessary to tender payment before maintaining such counterclaim." 98 § 1940. Evidence.-There must be an allegation and proof of loss by the neglect claimed to justify a recovery by the pledgor of securities, where the pledgee has failed to bring suit thereon, where he is indemnified against loss, on account of the pledge, under a mortgage given therefor.100 And in case no damages are shown no recovery can be had for an unauthorized foreclosure, especially where diligence and good judgment are used in the sale of the property. So the value of the pledgee's special interest in corporate stock must be proven in an action against a purchaser at a judicial sale to recover damages. Again, there can be no recovery for the loss by deterioration of goods placed in cold storage, where the amount thereof is not proven, but it is not necessary for the plaintiff, in order 96 Hawley Bros. Hardware Co. v. Brownstone, 123 Cal. 643; 56 Pac. 468. As to the right of set-off calls against unpaid debentures, see Christie v. Taunton, [1893] 2 Ch. 175; 41 Am. & Eng. Corp. Cas. 584. 97 Garvey v. Crouch, 18 Ky. L. Rep. 84; 35 S. W. 273. 98 Harris v. Curet, 9 Abb. Pr. N. S. (N. Y.) 199; but examine Classen v. Leopold, 2 Sweeney (N. Y.) 705. 99 First Nat. Bk. v. Rush (U. S. C. C. A. 8th C.), 56 U. S. App. 556; 29 C. C. A. 333; 85 Fed. 539. 100 Fernandez v. Torney, 121 Cal. 515; 53 Pac. 1119. 1 Whipple v. Dutton, 175 Mass. 365; 56 N. E. 581. 2 Second Nat. Bk. v. First Nat. Bk. 8 N. D. 50; 76 N. W. 504. to recover damages against the warehouseman for such deterioration, to prove more than that the goods when delivered into cold storage were, by the usual and ordinary test of commerce, classified as sound. It is not necessary for the plaintiffs to show that the process of deterioration had not begun in said goods, or that the cause thereof peculiar to that class of perishable articles did not exist, as in the case of insect life, when put in cold storage. But proof of the value of the article converted by the pledgee may be shown as of the time when possession was given him, where the date of the conversion or the then condition of the property do not appear. Again, the value stated in a receipt for the property stored will be evidence of its value in an action for its loss. So, evidence of what the bailor paid for the property is competent as to its value when lost." And where a model is delivered, to enable defendant to estimate the cost of manufacture, and the article has no market value, being of a new device, proof of the value thereof, in case of its loss through negligence of the bailee, may, as the basis of an award of damages, be based upon evidence of its actual cost price." 5 8 Marks v. New Orleans Cold Stor- | 210; 23 N. Y. Supp. 1008; 4 Misc. age Co., 107 La. 172; 31 So. 671; 57 L. R. A. 271. 4 Lamb v. O'Reiley, 68 N. Y. St. R. 114; 24 N. Y. Supp. 235; 13 Misc. 312. Shayne v. Krebs, 55 Ill. App. 238. 2006 104, a case of wearing apparel lost in a bathing establishment. See Jones v. Morgan, 90 N. Y. 4; 15 Wkly Dig. 318, aff'g 24 Hun, 372. 7 Waterman v. American Pin Co., 44 N. Y. Supp. 417; 19 Misc. 644 § 1941. General statement.-Actions by passengers have been considered in another part of this work,' where the subject has been generally treated in that class of cases where the action may be either in tort or contract. It is the purpose therefore in this chapter to only discuss those cases or actions which in the author's judgment could not properly be treated under the former subdivision. § 1942. Breach of contract of carriage-Generally.—For the breach of an executory contract to transport a passenger to a certain destination the measure of damages will be determined by considering the value of the time lost by the injured party, the cost of transportation to such point and such other loss or expense as legitimately flows from the carrier's breach of its contract. So where a carrier agreed to transport an 1 See ch. XV, herein. 104 Ga. 692; 30 S. E. 968; 12 Am. & 2 Louisville & N. R. Co. v. Spinks, | Eng. R. Cas. N. S. 48; Baltimore & opera troupe to a certain place by a specified time so as to enable such troupe to give performances at that place, there may be a recovery in an action for a breach of such agreement of damages for failure to arrive in time to give the contemplated performances. And it has been decided that for the breach of such a contract in consequence of which a ticket holder is obliged to purchase tickets over another line, there may be a recovery of damages for mental suffering. So, where entry to a train shed is refused a passenger at a connecting point in the presence of many people on the ground of his ticket having expired, evidence by him is declared to be admissible, in an action against the carrier therefor, that he felt ashamed and humiliated. And where a mileage ticket is sold by a carrier, but a mistake is made by it in negligently inserting the name of the purchaser therein and upon its being offered by the purchaser in payment of fare the conductor refuses to accept the same, an action against the company in case as well as assumpsit for breach of the contract may be maintained. But where no special damages are asked for in the complaint in an action against a carrier for the breach of its contract of carriage and it does not appear that there were any circumstances of humiliation or indignity, the measure of damages will be merely what it would cost the passenger to reach his destination in the most feasible and reasonable way. And damages for physical discomfort, pain, and injuries to limbs or feet occasioned by walking the distance are declared not to be recoverable. Nor can there be a recovery in an action for failure to transport an opera troupe in time to give advertised performances at a certain place for loss due to the breaking up of such troupe owing to the want of expected receipts from such performances." O. R. Co. v. Carr, 71 Md. 135. See 6 Holden v. Rutland R. Co., 72 Vt. 156; 47 Atl. 403. 7 Rose v. King, 76 App. Div. (N. Y.) 308; 78 N. Y. Supp. 419. 8 Louisville & N. R. Co. v. Spinks, St. Louis, A. & T. R. Co. v. 104 Ga. 692; 30 S. E. 968; 12 Am. & Berry (Tex. App.), 15 S. W. 48. Cleveland, C. C. & St. L. Ry. Co. v. Kinsley (Ind. App. 1901), 60 N. E. 169. Eng. R. Cas. N. S. 48. Foster v. Cleveland, C. C. & St. L. Ry. Co., 56 Fed. 434. § 1943. Failure to deliver ticket to person as agreed upon-Special damages.—Where a railroad company fails to keep its agreement to furnish a person with a ticket for passage to a designated place upon a certain specified day, and at the time of the agreement the company is informed of any special loss or damage which may result to such person if he is not furnished transportation on that day, the company will be liable for such special loss or damage. So where a railroad company at the time it agreed to furnish a ticket on a certain day was informed that delivery was necessary on that day to enable the person to proceed to the place designated, so that he might appear for the purpose of exhibition, in accordance with an engagement to that effect, it was held that such statement sufficiently informed the company of the special circumstances and that it was liable, where it failed to deliver the ticket, for the special damages which he sustained from the loss of such benefits as he would have received under the contract. And where the holder of a mileage book which provided that the mileage would not be accepted for passage, but must be exchanged for a continuous passage ticket, was refused such a ticket by the agent to whom he made proper and timely application therefor, it was decided that in an action on the case he was entitled to recover such damages as he had sustained in consequence of such refusal." But where a passenger is refused a return ticket to which he is entitled under the contract of transportation and is ejected while attempting to return without a ticket and no special damages are alleged or shown, he may recover in an action for breach of the contract the actual loss in money which he has sustained and is compelled to expend in consequence of the breach of contract by the carrier to furnish his return transportation.12 10 § 1944. Loss of commutation ticket.-Where a commutation ticket is issued below the regular rate, on condition that no rebate will be allowed on account of its nonuse from 10 Liman v. Pennsylvania R.R. Co., 4 Misc. (N. Y.) 539; 54 N. Y. St. R. 245; 24 N. Y. Supp. 824. 11 Pittsburg, C. C. & St. L. R. Co. v. Daniels, 90 Ill. App. 154. 12 Wilt v. Wabash R. Co., 21 Ohio Cir. Ct. R. 579; 11 O. C. D. 589. |