STEWART vs. WESTERN MARINE AND FIRE INSURANCE CO., 11 La. 53

Bullard, J., delivered the opinion of the court. . . , 1 his is an action upon a policy of insurance, in which the plaintiff claims for a partial loss. The merchandize covered by the policy, consisted of crates and casks of earthenware, some of which are-shown to have been lost, and others greatly damaged by the perils insured against.

The court below having given judgment for fifty per cent, damages upon the invoice value of the goods, the defendants appealed. cessary to* sell the goods to ascer-soundgoodsmay broiler*and^he difference be-the sales of the damaged^ ones, amount of die Another rule the amount1”! partial loss, is the difference between the res-proceeds oftfie same goods when sound and when damaged, fluctuations ^f duti^and^other charges at the p_ort °t destina- The appellants contend that the mode of calculating a partial loss on damaged goods, was not adopted in this case, The record shows that on the arrival of the damaged wares at the place of destination, they were examined by appraisers, who estimated the deterioration at fifty per cent., and that they were afterwards sold at auction on a credit of six months.

The appraisers assumed as the standard by which the damage was tobe estimated, the importation cost at New-Orleans. , , , „ , . 1 he subsequent sale appears to have confirmed the correctness their estimate. The authority on which the counsel ^0L appellant relies, from Hughes on Insurance, (280,) does not appear to us to establish a positive rule oh this subjecb which has been violated in this case to the prejudice of the underwriters. It was not necessary, certainly, to sell . , , , the sound part of the cargo, in order to establish the amount °f damage, because the price of the

article at the place of delivery is not the proper measure of indemnity. “ It was held, says the author referred to, in case of a partial loss on tobacco, that though the sale of both the sound and damaged hogsheads might be the most certain means of ascertaining the difference, and calculating the amount of the loss, yet the valuing of the sound hogsheads by a regular broker, and part¡eg acting bona fide, was sufficient.” The same author lays down the rule for calculating a partial loss to be, to estimate the difference between the respective gross proceeds of the same goods when sound and when damaged, an¿ not the nett proceeds, because the liability of the under- . 1 . , , „ . „ , . writer is not to vary with the fluctuations of the market, or to be affected by port duties or other charges, after the arrí-val of the goods at the port of destination.

Hughes on Insurance, page 371. The other questions arising in this case are those of facts, wbi°b appear to us to have been correctly solved. ^ liiereforej ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.