Cincinnati, New Orleans & Texas Pacific Railway Co. v. Rankin

Opinion op the Court by William Rogers Clay, Commissioner —

Extending Former Opinion and Overruling Petition for Rehearing.

In our former opinion, which may be found in 153 Ky., 730 , we used the following language:

“Should it turn out that the agreement limiting defendant’s liability to $75 per head was obtained by fraud or deceit, then the ordinary measure of damage will apply, with the exception that the court must take into consideration the fact that the defendant is liable for the proceeds of the sale of the injured stock retained by it, less the expense of sale and' the reasonable cost of the keep of the stock from the time of their injury.”

For the purpose of making clear what is intended by the foregoing language, we deem it necessary to say that ordinarily the measure of damages where stock is injured is the difference between their marked value just before and after injury. This rule, however, contemplates that the injured stock shall be delivered to the plaintiff. To apply that rule without qualification to .the facts of. this case would work an injustice to the *550 plaintiff," for the defendant, after a tender of the stock and a refusal on the part of the plaintiff to receive them, sold the stock and retained the proceeds of the sale' In. this' case, therefore, plaintiff, under the circumstances' indicated, is entitled to recover the difference between the market value of the stock just before and after the injury, and in- addition thereto the proceeds of the sale of the injured stock less the expense of sale and the .reasonable cost of their keep from the time of their injury.

The opinion is extended in the manner indicated, and the petition for rehearing is overruled.